Pauling v. Smith
| Decision Date | 19 November 1974 |
| Citation | 46 A.D.2d 759,361 N.Y.S.2d 16 |
| Parties | Application of Claudette PAULING, Petitioner, v. James W. SMITH and David Stadtmauer, etc., Respondents, for a Judgmet under Article 78 of the Civil Practice Law and Rules. |
| Court | New York Supreme Court — Appellate Division |
D. J. Agatstein, New York City, for petitioner.
M. H. Harris, New York City, for respondents.
Before McGIVERN, P.J., and MARKEWICH, KUPFERMAN, LUPIANO and STEUER, JJ.
Determination of the respondent Civil Service Commission of the City of New York, dated May 29, 1973, affirming the dismissal of petitioner from the Department of Social Services, modified on the law to the extent of substituting for penalty of dismissal of petitioner, a suspension without pay, for a period commencing from the date of dismissal to five days from the date of the entry of the order hereon, and as so modified, confirmed, without costs and without disbursements.
In this proceeding pursuant to Article 78 CPLR, petitioner seeks to review the action of the Civil Service Commission in affirming a dismissal of petitioner as a caseworker in the Department of Social Services upon charges of misconduct. Civil Service Law, § 76, subd. 3, provides that where an appeal in a disciplinary proceeding is taken to the Civil Service Commission, the decision of the Commission 'shall be final and conclusive, and not subject to further review in any court'. However, it has been held that the prohibition against any further review by a court does not bar entirely judicial review, and that such review is permitted when it is claimed that the action of the 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 515, 520, 524, 160 N.E.2d 60, 64, 67.
Special Term transferred the proceeding upon the ground that the nature of the penalty imposed on petitioner involved an issue of 'substantial evidence' (CPLR §§ 7803(4), 7804(g)). The test of 'substantial evidence' must be distinguished from that of 'arbitrariness'. (See Colton v. Berman, 21 N.Y.2d 322, 329, 287 N.Y.S.2d 647, 650, 234 N.E.2d 679, 681.) The matter of the extent of the punishment, and the review of the imposition of the punishment, has been recently comprehensively discussed in Matter of Pell v. Board of Education, 34 N.Y.2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321. The criterion for determining whether the punishment is to be disturbed by the Court, was reiterated in that case to be whether 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'. (p. 233, 356 N.Y.S.2d p. 841, 313 N.E.2d p. 327) Such a determination is to be made as a matter of law upon the basis of 'arbitrariness' rather than 'substantial evidence'. Therefore, the matter should have been heard and determined by Special Term. (CPLR 7804, subd (g); see Taylor v. N.Y. City Transit Authority, 25 A.D.2d 682, 269 N.Y.S.2d 75, affd. 19 N.Y.2d 724, 279 N.Y.S.2d 181, 225 N.E.2d 886.)
But even though Special Term has not properly transferred a case to the Appellate Division, the Appellate Division may, and can, decide the issues without remanding to Special Term. (CPLR 7804, subd. (g); Matter of Willow Garden Apartments, Inc. v. Riker et al., 36 A.D.2d 892, 320 N.Y.S.2d 148; Matter of 125 Bar Corp. v. State Liquor Authority, 24 N.Y.2d 174, 299 N.Y.S.2d 194, 247 N.E.2d 157; Matter of Rose Fasani v. Rappaport, etc., 30 A.D.2d 588, 589, 290 N.Y.S.2d 279, 281)
In our opinion, the dismissal of petitioner under the circumstances of this case was an...
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