O'Neill v. Doherty

• Decision Date: 31 January 2012
• Citation: 937 N.Y.S.2d 581,91 A.D.3d 583,2012 N.Y. Slip Op. 00653
• Parties: In re Brian O'NEILL, Petitioner, v. John DOHERTY, as Commissioner of the Department of Sanitation of the City of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00653

91 A.D.3d 583

937 N.Y.S.2d 581

In re Brian O'NEILL, Petitioner,

v.John DOHERTY, as Commissioner of the Department of Sanitation of the City of New York, Respondent.

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

Jan. 31, 2012.

Kirschner & Cohen, P.C., Great Neck (Steven B. Kirschner of counsel), for petitioner.

Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of counsel), for respondent.

Determination of respondent, dated October 12, 2010, which terminated petitioner's employment as a sanitation worker, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Alice Schlesinger, J.], entered April 15, 2011), dismissed, without costs.

Respondent's finding that petitioner violated the rule against loading trade waste in excess of six bags without authorization is supported by substantial evidence ( see generally 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180–181, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ). Petitioner and his partner matched the physical description of the sanitation workers a member of the public complained were picking up construction debris from a private house under renovation. It was also undisputed that petitioner and his partner were in the vicinity of the house at the time of the complaint, and when their truck was dumped, construction debris in violation of the trade-waste rule was found. Moreover, a deputy chief in the Department of Sanitation testified that carpet and tiles in the truck matched the distinctive pattern he saw in the garbage at the house.

The penalty imposed does not shock our sense of fairness. The record shows that petitioner was employed for less than three years at the time of the violation and he had multiple prior disciplinary infractions for misconduct ( see Matter of Williams v. Doherty, 13 A.D.3d 185, 785 N.Y.S.2d 914 [2004] ).

TOM, J.P., SWEENY, DeGRASSE, ABDUS–SALAAM, MANZANET–DANIELS, JJ., concur.