Phinn v. Kross

• Decision Date: 30 August 1960
• Citation: 205 N.Y.S.2d 692,26 Misc.2d 889
• Parties: Application of Eric J. PHINN, Petitioner, for an Order pursuant to Article 78 of the Civil Practice Act, v. Anna M. KROSS, as Commissioner of the Department of Correction of the City of New York, Respondent.
• Court: New York Supreme Court

Page 692

205 N.Y.S.2d 692

26 Misc.2d 889

Application of Eric J. PHINN, Petitioner, for an Order pursuant to Article 78 of the Civil Practice Act, v. Anna M. KROSS, as Commissioner of the Department of Correction of the City of New York, Respondent.

Supreme Court, Special Term, New York County, Part I.

Aug. 30, 1960.

Morris Weissberg, New York City, for petitioner. Charles H. Tenney, Corp. Counsel, of the City of New York, New York City (Edwin Margolis, Asst. Corp. Counsel, New York City, of counsel), for respondent.

MATTHEW M. LEVY, Justice.

On August 16, 1955, the petitioner was appointed a correction officer in the Department of Correction of the City of New York. On January 27, 1958, written charges and specifications of violations of the rules and regulations of the Department were served on the petitioner as follows: (1) that the petitioner had accepted and removed from the Penitentiary at Rikers Island, without official authorization, a letter written by an inmate confined at the institution, addressed to the inmate's wife; (2) that the petitioner was absent without official leave on December 28, 1957; and (3) that the petitioner failed to submit the prescribed written report in connection with his lateness in reporting for duty on December 28, 1957.

On April 16, 1958, the petitioner was dismissed by the Commissioner of Correction, who made a determination, after due hearing, that the petitioner was guilty of each of the charges and specifications. The petitioner commenced a proceeding for judicial review of his removal, and, on May 28, 1959, the Appellate Division of this court, in the exercise of its original jurisdiction in such matters (Civil Practice Act, § 1296), held that 'there was no substantial evidence on the whole record to establish the charge contained in the first specification,' and that 'the other two charges were sustained'. In its opinion the court also stated that '[u]nquestionably the determination dismissing petitioner from the department was actuated in a great measure by the adverse finding as to the first charge'. Phinn v. Kross, 8 A.D.2d 132, 140, 186 N.Y.S.2d 469, 477. The order of the court provided 'that the determination of the respondent be and the same hereby is annulled and the matter remanded to the Commissioner of Correction to reconsider the punishment in the light of the opinion of this Court.' On August 17, 1959 the respondent made a 'Redetermination of Punishment', in which she stated 'that after consideration of all the factors involved, I adhere to my original determination of dismissal and again order respondent, Eric Phinn, dismissed from the Department of Correction Nunc Pro Tunc as of April 16, 1958.'

This is a proceeding, invoking Article 78 of the Civil Practice Act, whereby the petitioner asks the court to review the respondent's redetermination as to the punishment imposed, and to remand the proceeding to the respondent with directions to impose a lesser punishment. The Commissioner, in response to the petition, has stated that she considered the gravamen of the charges and the disciplinary record of the petitioner, as well as the petitioner's period of service in the department and, after consideration of all the factors involved, she dismissed the petitioner from his job as correction officer nunc pro tunc as of April 16, 1958, the date of the original determination. Several issues were argued by the parties when this matter first came before me, and, at my request prior to decision, reargument was had and further briefs were submitted when I posed what seemed to me to be a number of additional issues relevant to a proper disposition of the proceeding.

In 1955, subdivision 5-a was added to Section 1296 of the Civil Practice Act to overcome decisional law disallowing judicial review of administrative determination as to the punishment imposed upon a civil service employee (Barsky v. Board of Regents of the University of the State of New York, 305 N.Y. 89, 111 N.E.2d 222). That subdivision provided for an additional issue to be passed upon by the courts--that is, as to

'Whether the respondent abused his discretion in imposing the measure of punishment or penalty or discipline involved in the determination.'

The petitioner claims such 'abuse of discretion' on four based: (1) that the punishment of dismissal was intrinsically too severe for the two offenses of which he was found guilty; (2) that dismissal was too drastic, even taking into account his prior violations of departmental regulations; (3) that he was not afforded a hearing on the issue of punishment as distinct from guilt, and that his prior disciplinary record was not offered in evidence as so to give him an opportunity to respond thereto; and (4) that the penalty of dismissal was impermissible in view of the earlier reversal and decision of the Appellate Division.

It will be recalled that the charges of which the petitioner has been presently found guilty are (a) that he absented himself from his duties on one day without official permission, and (b) that he failed, notwithstanding the requirements of the rules of the department, to submit a written report as to his tardiness in reporting for duty on that day. I would agree with the petitioner that for such two offenses--were they isolated--dismissal is a rather harsh penalty, and that, without more, such disciplinary action would seem to be an abuse of discretion.

But it appears that since his appointment on August 16, 1955-a period of less than three years prior to the effective date of his dismissal and inclusive of his probationary status--the petitioner has been brought up on charges six times, consisting of 17 specifications (exclusive of the present charges). These violations, in the main, involved repeated absences without official authority on a number of days, tardiness without excuse, failure to notify his superiors thereof, neglect in submission of reports thereon, failure to file physician's certificates as to alleged illnesses, and similar offenses. The petitioner was found guilty and fined each time--the punishment being gradually stepped up--at first two days' pay, then three, then eight and finally ten days' pay. And there was one other specification of which the petitioner was found guilty as far back as January 15, 1957--that the petitioner '[f]ailed to rectify his attendance comportment'.

While each of the specifications, past and present, if taken individually, might be considered trivial, or not of such a serious nature as to warrant the drastic punishment of dismissal, it seems to me that their number shows a persistent and continuing pattern of neglectful conduct, irresponsible behavior or insubordinate attitude, or all, in flagrant violation and disregard of the rules of the Department of Correction, a division of municipal administration that is directly concerned with security and where high standards of employee service must be maintained. Frequent unexecused absence and tardiness, coupled with repeated failure to notify his superiors of anticipated non- or late appearance at the petitioner's institution of assignment, may result in the disruption of the good order, efficiency and security of the institution of which the Commissioner has official charge. If the Commissioner were to treat lightly such continual acts on the petitioner's part, and permit the petitioner to ignore the precise interim warning which he was given, it might tend to create a false impression that other could do likewise without fear of substantial punishment, and thus adversely affect the morale of the whole department. And, since I am of the view that it is the function and responsibility of the Commissioner to run the department, and not the court's (Croft v. McGinnis, Sup., 196 N.Y.S.2d 115, 119), I would not interfere with her determination here unless it was arrived at by proceedings that were contrary to law or there was an abuse of discretion in the measure of the punishment imposed.

In my view, taking the record as a whole, the punishment here is not so shocking to the court's sense of fariness that it constitutes an abuse of discretion. In the case at bar, the petitioner's employment covered less than three years. That alone would differentiate the present situation from that of the petitioner in Nimelman v. Kross, 5 A.D.2d 987, 173 N.Y.S.2d 136, 137, where the court held that '[d]ismissal with consequent loss of pay privileges and pension rights in the case of a physician with a record of twenty-three years of good and faithful service is much too severe'. The petitioner relies upon the statement in the opinion of the Appellate Division in the instant case (hereinbefore referred to)--that '[u]nquestionably the [respondent's] determination dismissing petitioner from the department was actuated in a great measure by the adverse finding as to the first charge.' 8 A.D.2d 132, 140, 186 N.Y.S.2d 469, 477--and contends that the respondent did not give due consideration thereto when she made her redetermination. If the Appellate Division thought that the respondent's determination of dismissal was shocking to its sense of fairness here, it could have so stated, as it did in Nimelman v. Kross, 5 A.D.2d 984, 173 N.Y.S.2d 136, 137, supra, where the court annulled the dismissal and remitted the proceedings to the Commissioner for the imposition of disciplinary measures consistent with the court's holding that the penalty imposed upon Nimelman was 'much too severe'. In the instant case, on the other hand, the opinion did not contain any indication that the Appellate Division was of the view that the punishment was excessive. It is not to be implied from the order of remand that the Appellate Division was of the opinion that the punishment imposed was inappropriate in respect of the two charges upon which the petitioner was properly found guilty. Here, as in Sullivan v. Moynihan, 285 App.Div. 965, 138 N.Y.S.2d 636, ...