Tamsenv.Vill. of Kenmore

Supreme Court, Appellate Division, Fourth Department, New York.Feb 5, 2016
24 N.Y.S.3d 539 (N.Y. App. Div. 2016)
24 N.Y.S.3d 539136 A.D.3d 12752016 N.Y. Slip Op. 785

02-05-2016

In the Matter of Jeffrey TAMSEN, Petitioner, v. VILLAGE OF KENMORE, Respondent.

W. James Schwan, Buffalo, for Petitioner. Bond, Schoeneck & King, PLLC, Buffalo (Mark A. Moldenhauer of Counsel), for Respondent.


W. James Schwan, Buffalo, for Petitioner.

Bond, Schoeneck & King, PLLC, Buffalo (Mark A. Moldenhauer of Counsel), for Respondent.

MEMORANDUM:

Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination finding him guilty of misconduct and terminating his employment as a firefighter. Contrary to petitioner's contention, we conclude that the determination is supported by substantial evidence, i.e., "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183 ; see CPLR 7803[4] ). We likewise reject petitioner's contention that the Hearing Officer erred in determining that he misrepresented the facts of the 911 call underlying this proceeding. Although petitioner presented evidence to the contrary, "[t]he Hearing Officer was entitled to weigh the parties' conflicting ... evidence and to assess the credibility of witnesses, and ‘[w]e may not weigh the evidence or reject [the Hearing Officer's] choice where the evidence is conflicting and room for a choice exists' " (Matter of Clouse v. Allegany County, 46 A.D.3d 1381, 1382, 849 N.Y.S.2d 372, quoting Matter of CUNY–Hostos Community Coll. v. State Human Rights Appeal Bd., 59 N.Y.2d 69, 75, 463 N.Y.S.2d 173, 449 N.E.2d 1251 ; see Matter of Childs v. City of Little Falls, 109 A.D.3d 1148, 1149, 972 N.Y.S.2d 127 ). We further conclude that the penalty imposed is not " ‘so disproportionate to the offense[s] as to be shocking to one's sense of fairness,’ " and thus it does not constitute an abuse of discretion (Matter of Kelly v. Safir, 96 N.Y.2d 32, 38, 724 N.Y.S.2d 680, 747 N.E.2d 1280, rearg. denied 96 N.Y.2d 854, 729 N.Y.S.2d 670, 754 N.E.2d 773 ).

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

SMITH, J.P., PERADOTTO, LINDLEY, DeJOSEPH, and SCUDDER, JJ., concur.