Barone v. City of Dunkirk

• Decision Date: 20 May 1977
• Citation: 57 A.D.2d 1040,395 N.Y.S.2d 809
• Parties: Application of Louis R. BARONE, Respondent, v. The CITY OF DUNKIRK, New York, Edward J. Mulville, Chief of Police of the City of Dunkirk, New York and William B. Schlichter, et al., Constituting the Common Council of the City of Dunkirk, New York, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 809

395 N.Y.S.2d 809

57 A.D.2d 1040

Application of Louis R. BARONE, Respondent, v. The CITY OF DUNKIRK, New York, Edward J. Mulville, Chief of

Police of the City of Dunkirk, New York and William B.

Schlichter, et al., Constituting the Common Council of the

City of Dunkirk, New York, Appellants.

Supreme Court, Appellate Division, Fourth Department.

May 20, 1977.

Daniel R. Polowy, City Atty., Dunkirk, for appellants.

Dixon, DeMarie & Szymoniak, Anthony J. DeMarie, Buffalo, for respondent.

Before MOULE, J. P., and CARDAMONE, SIMONS, DILLON and WITMER, JJ.

MEMORANDUM:

Petitioner, a lieutenant in the City of Dunkirk Police Department, was dismissed from his position by the City of Dunkirk Common Council as a result of being found guilty of charges including official misconduct, grand larceny, conspiracy to commit petit larceny, petit larceny and perjury arising out of a scheme that he allegedly directed which resulted in the payment of unauthorized overtime and sick leave pay. In this Article 78 proceeding petitioner seeks to vacate that determination. Although adopting the Council's findings of fact, Special Term ordered that the penalty of dismissal was disproportionate to the offenses charged and vacated the determination of the Common Council, reinstated petitioner to the rank of lieutenant and modified the penalty to a two-month suspension and $200.00 fine. Respondents appeal from such order.

A court, when reviewing the sufficiency of a determination made by a public official, body or entity, must decide whether the determination was "on the entire record, supported by substantial evidence" (CPLR 7803(4)). This requires the existence of "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" (Matter of Jerry v. Board of Education, 50 A.D.2d 149, 153, 376 N.Y.S.2d 737, 742). We find that based upon the testimony of seven members of petitioner's platoon who participated in the scheme and petitioner's testimony during his criminal trial, there was substantial evidence to support the conclusion that petitioner was guilty of official misconduct, conspiracy to commit petit larceny, petit larceny and perjury.

A court reviewing a penalty imposed by an administrative agency may modify the penalty only if it concludes that the punishment is "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness" (Matter of Pell v. Board of Education, 34 N.Y.2d...