Joshua v. McGrath
| Decision Date | 12 June 1973 |
| Citation | 42 A.D.2d 535,345 N.Y.S.2d 5 |
| Parties | Application of Samuel JOSHUA, Petitioner, v. George F. McGRATH, Commissioner of Correction of the City of New York, et ano., etc., Respondents. |
| Court | New York Supreme Court — Appellate Division |
G. D. Covington, New York City, for petitioner.
I. Cohen, New York City, for respondents.
Before NUNEZ, J.P., and KUPFERMAN, LANE, STEUER and CAPOZZOLI, JJ.
Determination of respondent Commissioner of Correction dated August 22, 1968 dismissing petitioner from his position as correction officer modified on the law and in the exercise of discretion to the extent of mitigating the punishment from dismissal to a suspension without pay from August 23, 1968 to 30 days after service of a copy of the order to be entered hereon, and as so modified, confirmed without costs or disbursements.
Petitioner-appellant was a correction officer for about 15 years. He is a combat veteran of World War II. He has been dismissed after a hearing wherein he was adjudged guilty of all charges, i.e., that on March 7, 1967, March 16, 1967 and April 4, 1967 while absent from duty due to illness, he left his residence without notifying the proper Department authorities. Witnesses testified that they called at petitioner's residence, knocked on his door and received no response. Petitioner testified that he was under heavy sedation during the relevant dates, that he did not hear the knocks, but that he was home each time. We concede that there is sufficient and substantial evidence to sustain respondent's finding that petitioner had left his home without notice to respondent in violation of Correction Department rules and regulations. These charges, while substantial, do not involve any venality, corruption or moral turpitude. No charge of viciousness is made. He has been found guilty only of failing to advise respondent that he was leaving his home while absent on sick leave. We conclude that the penalty of dismissal from office 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 Stolz v. Board of Regents, 4 A.D.2d 361, 364, 165 N.Y.S.2d 179, 182; Matter of Tolan v. Murphy, 39 A.D.2d 197, 333 N.Y.S.2d 296; Matter of Smith v. Murphy, 38 A.D.2d 931, 330 N.Y.S.2d 146.)
There has been undue delay herein by both sides. Respondent waited about 15 months after the hearing before announcing his decision. A period of four years has elapsed from the time this proceeding was transferred to this Court. Petitioner did not pursue it diligently. On the other hand, respondent made no move to dismiss. It would be most unfair to grant petitioner's request for back pay.
Whether the judicial review is a narrow one limited to the question of whether a determination is 'arbitrary' or 'capricious', or a broader one as to whether it is supported by 'substantial evidence', Matter of Long Island College Hospital, 32 N.Y.2d 314, 321, 345 N.Y.S.2d 449, 454, 298 N.E.2d 614, 617 (1973), the determination should be confirmed.
If all that were involved was the question of leaving a...
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McGillicuddy v. Golar
...that the dismissal is so disproportionate to the offense as to be shocking to one's sense of fairness (cf. Matter of Joshua v. McGrath, 42 A.D.2d 535, 345 N.Y.S.2d 5). All concur except KUPFERMAN, J., who dissents in the following The situation here is similar to that in Matter of Joshua v.......
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Joshua v. McGrath
...of the City of New York, et al., Appellants. Court of Appeals of New York. Nov. 15, 1973. Motion to dismiss the appeal, 42 A.D.2d 535, 345 N.Y.S.2d, 5, Motion by respondent for leave to proceed as poor person granted to the extent that he may file ten copies of a typewritten brief. ...