Shih v. the Waterfront Comm'n of N.Y.

• Decision Date: 21 April 2011
• Citation: 2011 N.Y. Slip Op. 03190,922 N.Y.S.2d 36,83 A.D.3d 564
• Parties: Conrad SHIH, Petitioner–Appellant,v.The WATERFRONT COMMISSION OF NEW YORK, Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 564
922 N.Y.S.2d 36
2011 N.Y. Slip Op. 03190

Conrad SHIH, Petitioner–Appellant,
v.
The WATERFRONT COMMISSION OF NEW YORK, Respondent–Respondent.

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

April 21, 2011.

[922 N.Y.S.2d 36]

Noah A. Kinigstein, New York, for appellant.Phoebe S. Sorial, New York, for respondent.FRIEDMAN, J.P., SWEENY, DeGRASSE, ABDUS–SALAAM, ROMÁN, JJ.

[83 A.D.3d 565] Order and judgment (one paper), Supreme Court, New York County (Eileen A. Rakower, J.), entered October 7, 2009, which denied the petition seeking reinstatement with back pay, benefits, costs, and attorney's fees, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

[922 N.Y.S.2d 37]

The determination that petitioner's position as an auditor was not within the definition of “permanent employee” under section IV(A)(1)(a) of the Employees' Manual, and that he was therefore not entitled to the due process protections of a pretermination hearing, was not arbitrary and capricious ( see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ). An agency has broad power to construe and interpret its own rules, and its interpretation must be upheld where, as here, it is rational ( see Matter of Howard v. Wyman, 28 N.Y.2d 434, 438, 322 N.Y.S.2d 683, 271 N.E.2d 528 [1971] ).

Petitioner's termination did not violate Executive Law § 296(15) and (16). Disorderly conduct, a violation, to which petitioner pleaded guilty, does not constitute a “criminal offense” within the meaning of subdivision 15, and his arrest did not result in the termination of the criminal action in his favor, as required by subdivision 16.

As a nontenured employee, petitioner was not entitled to a full adversarial hearing concerning the reasons for his termination; he has failed to show that his termination was for an improper reason or in bad faith ( see Matter of Beneky v. Waterfront Commn. of N.Y. Harbor, 42 N.Y.2d 920, 921, 397 N.Y.S.2d 995, 366 N.E.2d 1349 [1977], cert. denied 434 U.S. 940, 98 S.Ct. 432, 54 L.Ed.2d 300 [1977] ).

Given petitioner's attempt to steal a DVD from a music store and failure to report his arrest on related charges, we cannot say that the penalty imposed was so disproportionate to the offense as to shock one's sense of fairness ( see Rodriguez v. City of New York, 71 A.D.3d 512,...