Graham v. New Hampton Fire Dist.

• Decision Date: 23 September 2015
• Docket Number: 2013-10243, Index No. 6970/13.
• Citation: 16 N.Y.S.3d 616,131 A.D.3d 1168,2015 N.Y. Slip Op. 06917
• Parties: In the Matter of Daniel GRAHAM, petitioner, v. NEW HAMPTON FIRE DISTRICT, respondent.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 1168

16 N.Y.S.3d 616

2015 N.Y. Slip Op. 06917

In the Matter of Daniel GRAHAM, petitioner

v.NEW HAMPTON FIRE DISTRICT, respondent.

2013-10243, Index No. 6970/13.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 23, 2015.

Sussman and Watkins, Goshen, N.Y. (Michael H. Sussman of counsel), for petitioner.

Pillinger Miller Tarallo, LLP, Elmsford, N.Y. (Evan H. Echenthal of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the New Hampton Board of Fire Commissioners, dated April 30, 2013, which adopted in part and rejected in part the recommendation of a hearing officer, made after a hearing, and found the petitioner guilty of insubordination, misconduct, incompetence, and conduct unbecoming of a member of the fire department of the New Hampton Fire District, and thereupon terminated his employment.

ADJUDGED that the petition is granted, on the law, with costs to the petitioner, to the extent that so much of the determination as found the petitioner guilty of specification two of charge one and specification two of charge two is annulled, those specifications are dismissed, the penalty imposed is vacated, the determination is otherwise confirmed, and the matter is remitted to the New Hampton Board of Fire Commissioners for a consideration of the appropriate penalty to be imposed in accordance herewith, and the imposition of such a penalty thereafter.

The petitioner was a volunteer member of the fire department of the New Hampton Fire District (hereinafter the District). After a hearing, the New Hampton Board of Fire Commissioners (hereinafter the Board) found the petitioner guilty of two charges of insubordination, misconduct, incompetence, and conduct unbecoming of a member of the District's fire department. Specifications one and two of charge one alleged that the petitioner reported information or allowed someone to report information on his behalf to outside sources, specifically Breaking News Network (hereinafter BNN), a social networking site that reports emergency medical service, fire, and police calls to different subscribers. The petitioner was a reporter for BNN, and was assigned a designated reporter's code or identifying number. The petitioner was directed by his superiors not to report to BNN or allow anyone to use his BNN code in connection with any alarms with respect to which the District was called. An individual thereafter used the petitioner's BNN code to report on an alarm with respect to which the District was called.

Specification one of charge two alleged that the petitioner brought a firearm onto the District's property in violation of a resolution prohibiting the possession of firearms on that property. Specification two of charge two alleged that the petitioner threatened to shoot another member of the District's fire department, and had brandished or displayed a firearm in front of another member, or threatened to do so.

Pursuant to CPLR article 78, judicial review of an administrative determination made after a hearing at which evidence is taken is limited to consideration of whether that determination is supported by substantial evidence (see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 179–180, 408 N.Y.S.2d 54, 379 N.E.2d 1183 ; Matter of Sica v. Walker, 115 A.D.3d 869, 869, 982 N.Y.S.2d 339 ; Matter of Parker v. Blauvelt Volunteer Fire Co., 222 A.D.2d 437, 437, 634 N.Y.S.2d 524 ).

The Board's determination as to specification one of charge one is supported by substantial evidence in the record (cf. Matter of Parker v. Blauvelt Volunteer Fire Co., 222 A.D.2d at 437, 634 N.Y.S.2d 524 ; Matter of Clarke v. Board of Educ. of Vestal Cent. School Dist., 105 A.D.2d 893, 895, 482 N.Y.S.2d 80 ). However, the Board's determination that the petitioner committed misconduct in allowing another individual to use his BNN reporter's code, as alleged in specification two of charge one,...