Barbarito v. Moses
| Decision Date | 04 March 1969 |
| Citation | 31 A.D.2d 898,297 N.Y.S.2d 831 |
| Parties | In the Matter of Rocco P. BARBARITO, Petitioner-Appellant, for an Order pursuant to Article 78 of the Civil Practice Law and Rules, v. Robert MOSES, as Chairman of the Triborough Bridge & Tunnel Authority, and Solomon Hoberman, Milton Samorodin and George Gregory, Jr., as members of the New York City Civil Service Commission, and the City of New York, Respondents-Respondents, to review a determination of punishment made by the Respondents after a hearing held pursuant to Section 75 of the Civil Service Law. |
| Court | New York Supreme Court — Appellate Division |
B. Perkel, New York City, for petitioner-appellant.
L. M. Rudolph, New York City, for respondents-respondents.
Before EAGER, J.P., and MARKEWICH, RABIN, McNALLY and BASTOW, JJ.
Order entered September 19, 1967, dismissing petition to review a determination of the New York City Civil Service Commission which affirmed petitioner's discharge as an employee of Triborough Bridge and Tunnel Authority, affirmed, without costs or disbursements, but, in the interests of justice and in the exercise of discretion, without prejudice to an application at Special Term on proper papers, within twenty days after service of a copy of the order herein with notice of entry, for leave to serve an amended petition.
We agree with the holding at Special Term that petitioner, by appealing from his dismissal to respondent Commission, elected his remedy and was foreclosed from seeking judicial review if his dismissal was not 'purely arbitrary' (sec. 76 Civil Service Law; In Matter of Taylor v. New York City Tr. Auth., 25 A.D.2d 682, 269 N.Y.S.2d 75). The limited nature of judicial review demands that a petitioner allege matter indicating 'purely arbitrary' action. The punishment of dismissal visited upon petitioner upon the finding of 'negligent registration of tolls' is not on its face so disproportionate to the offense as to warrant a conclusion that it was 'purely arbitrary'. A finding of guilt on that specification, in the absence of allegations as to other circumstances, may reasonably sustain a determination of complete and utter incompetence to hold the position from which petitioner was separated. However, petitioner may be able to allege and demonstrate, from the record, that the availability of other alternative punishments rendered a dismissal a 'purely arbitrary' disposition. Petitioner is therefore given an opportunity to apply for...
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... ... See, Barbarito v. Robert Moses, et al., 31 A.D.2d 898, 297 N.Y.S.2d 831; Santella v. Hoberman, et al., 29 A.D.2d 655, 286 N.Y.S.2d 647; Taylor v. New York City ... ...
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... ... Commission was 'purely arbitrary'. Barbarito v. Moses, 31 A.D.2d 898, 297 N.Y.S.2d 831; see also Matter of Board of Education of City of New York v. Allen, 6 N.Y.2d 127, 136, 141, 188 N.Y.S.2d ... ...
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Schrader v. Civil Service Com'r of Monroe County
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