No. 104 SSM 8.
Decided May 6, 2004.
APPEAL from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered December 29, 2003. The Appellate Division, with two Justices dissenting, affirmed a judgment of the Supreme Court, Kings County (Lawrence Knipel, J.), entered in a proceeding pursuant to CPLR article 78, which had denied a petition to review a determination of respondent New York City Transit Authority demoting petitioner and dismissed the proceeding.
Petitioner manager was charged with violating the respondent's rules for failing to take immediate action regarding an alleged incident of sexual harassment committed by a subordinate and for filing a false and misleading report regarding the incident. The hearing officer upheld the charges and imposed a penalty of demotion. The Supreme Court denied petitioner's CPLR article 78 petition to review the determination and dismissed the proceeding.
The Appellate Division majority concluded that Supreme Court correctly found that the hearing officer's determination was not arbitrary and capricious; that the penalty imposed was not so disproportionate to the offense as to shock one's sense of fairness; that, as a manager, petitioner was held to the highest standards in terms of abiding by and implementing respondent's rules, policies, and procedures; and that in light of petitioner's failure to take immediate action in response to the allegation of sexual harassment, his lack of candor, and his misrepresentation on the report, the penalty of demotion did not shock the judicial conscience.
Matter of Kreisler v. New York City Tr. Auth., 2 AD3d 856, affirmed.
Robert Ligansky, New York City, for appellant.
Martin B. Schabel, Brooklyn, and Victor M. Levy for respondent.
Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed, with costs.
An administrative penalty must be upheld unless it "is so disproportionate to the offense . . . as to be shocking to one's sense of fairness," thus constituting an abuse of discretion as a matter of law ( Matter of Pell v. Board of Educ., 34 NY2d 222, 237 [internal quotation marks omitted]). Under the circumstances of this case, it cannot be concluded, as a matter of law, that the penalty of demotion shocks the judicial conscience. Petitioner's remaining contentions lack merit.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals ( 22 NYCRR 500.4), order affirmed, with costs, in a memorandum.