Snowden v. Vill. of Monticello

• Decision Date: 29 November 2018
• Docket Number: 526490
• Citation: 166 A.D.3d 1451,89 N.Y.S.3d 366
• Parties: In the Matter of James SNOWDEN, Appellant, v. VILLAGE OF MONTICELLO, Respondent.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1451

89 N.Y.S.3d 366

In the Matter of James SNOWDEN, Appellant,

v.VILLAGE OF MONTICELLO, Respondent.

526490

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

Calendar Date: October 10, 2018

Decided and Entered: November 29, 2018

Sussman and Associates, Goshen (Michael H. Sussman of counsel), for appellant.

Drew, Davidoff & Edwards Law Offices, LLP, Monticello (Michael Davidoff of counsel), for respondent.

Before: Garry, P.J., Lynch, Devine, Aarons and Pritzker, JJ.

MEMORANDUM AND JUDGMENT

Garry, P.J.

Proceeding pursuant to CPLR article 78(transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of respondentVillage of Monticello terminating petitioner's employment.

Petitioner was previously employed by respondent as its Building Inspector and Code Enforcement Officer.In July 2016, respondent filed a notice and statement of charges against petitioner.As relevant here, charge 1 alleged that petitioner had "committ[ed] acts constituting crimes," related to the unauthorized demolition of a building in October 2013, and the failure to properly abate the asbestos contained therein.¹Petitioner denied the allegations and challenged the charge as untimely pursuant to Civil Service Law § 75(4).In September 2016, following a hearing, a Hearing Officer found that the charge was not time-barred and was supported by substantial evidence and recommended the imposition of a penalty.Respondent thereafter adopted the Hearing Officer's findings and recommendation, and terminated petitioner's employment.Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, and Supreme Court transferred the matter to this Court(seeCPLR 7804[g] ).

Petitioner's primary contention on appeal is that the charge should have been dismissed as untimely.Indeed, "no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges"( Civil Service Law § 75[4];seeMcKinney v. Bennett,31 A.D.3d 860, 861, 817 N.Y.S.2d 767[2006] ).However, this limitations period does not apply "where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime"( Civil Service Law § 75[4];seeMatter of Dean v. Bradford,158 A.D.2d 772, 775, 551 N.Y.S.2d 364[1990] ).Contrary to petitioner's assertions, this Court"refer[s] — by statutory directive — only to the allegations of misconduct complained of and described in the charges.Thus, our [threshold] inquiry is limited to the allegations contained in the charges and specifications, without consideration of the proof or papers submitted in petitioner's subsequent judicial proceeding (or at any ensuing disciplinary hearing) challenging the charges as untimely"( Matter of Rodriguez v. County of Albany,105 A.D.3d 1124, 1126, 962 N.Y.S.2d 801[2013][internal quotation marks and citations omitted; emphasis added];accordMatter of De Guzman v. State of N.Y. Civ. Serv. Commn.,129 A.D.3d 1189, 1192, 11 N.Y.S.3d 296[2015], lv denied26 N.Y.3d 913, 2015 WL 7432847[2015] ).

Here, specification 1 of charge 1 incorporated the allegations detailed in petitioner's related nine-count criminal indictment stemming from the same underlying conduct and events.Beginning with count 8 of said indictment, petitioner is alleged to have "knowingly, unlawfully and intentionally engage[d] persons to effect the unauthorized demolition of the [building ], knowing that unabated asbestos was located therein or thereupon, causing the release of a substance hazardous to public health, safety or the environment, said substance being asbestos."If proven, these allegations would constitute the crime of endangering public health, safety or the environment in the fourth degree (seeECL 71–2711[3] ).As to count 9, petitioner is alleged, with regard to the demolition of the building, to have "engag[ed] persons neither certified nor qualified to abate the asbestos located therein, ... knowing that asbestos was located therein, such demolition having been performed without asbestos abatement or any reasonable procedure to prevent the release of asbestos into the public air, ... [and] having released a considerable amount of [asbestos] dust and debris into the air" in a populated area.These allegations would, if proven at trial, constitute the crime of criminal nuisance in the second degree (seePenal Law § 240.45[1] ).Likewise, we find that the allegations against petitioner as detailed in counts 5 through 7 would constitute, if established at trial, official misconduct (seePenal Law § 195.00[2];compareMatter of Rodriguez v. County of Albany,105 A.D.3d at 1127, 962 N.Y.S.2d 801 ).Accordingly, the Hearing Officer properly found that the charge is not time-barred (seeCivil Service Law § 75[4];Matter of Rea v. City of Kingston,110 A.D.3d 1227, 1230, 973 N.Y.S.2d 395[2013];Scales v. Maxwell,52 A.D.2d 719, 720, 382 N.Y.S.2d 171[1976];see e.g.Matter of Hanlon v. New York State Police,133 A.D.3d 1265, 1266, 19 N.Y.S.3d 386[2015];Matter of McKinney v. Bennett,31 A.D.3d at 861, 817 N.Y.S.2d 767 ).

Next, petitioner argues that the determination should be annulled as unsupported by substantial evidence.We disagree.Respondent's determination to terminate petitioner's employment pursuant to Civil Service Law § 75 must be upheld if supported by substantial evidence (seeMatter of Gibson v. Board of Educ. for City School Dist. of Albany,96 A.D.3d 1120, 1121, 945 N.Y.S.2d 814[2012];Matter of Wilson v. Town of Minerva Town Bd.,65 A.D.3d 788, 789, 883 N.Y.S.2d 738[2009];Matter of Finigan v. Lent,189 A.D.2d 935, 936, 592 N.Y.S.2d 818[1993], lv dismissed81 N.Y.2d 1067, 601 N.Y.S.2d 583, 619 N.E.2d 661[1993], lv denied82 N.Y.2d 657, 604 N.Y.S.2d 47, 624 N.E.2d 177[1993] ).In conducting our review, "this Court may not substitute its own judgment for that of [respondent], even when evidence exists that could support a different result"( Matter of Longton v. Village of Corinth,57 A.D.3d 1273, 1274, 869 N.Y.S.2d 682[2008][internal quotation marks, brackets and citation omitted], lv denied13 N.Y.3d 709, 2009 WL 3379123[2009];seeMatter of Knox v. VanBlarcum,105 A.D.3d 1198, 1200, 964 N.Y.S.2d 678[2013] ).Where there is conflicting evidence, we defer to the Hearing Officer's credibility determinations (seeMatter of James v. Hoosick Falls Cent. School Dist., 93 A.D.3d 1131, 1133, 941 N.Y.S.2d 335[2012];Matter of Sindoni v. County of Tioga,67 A.D.3d 1183, 1184, 889 N.Y.S.2d 285[2009];Matter of McKinney v. Bennett,31 A.D.3d at 861, 817 N.Y.S.2d 767 ).

At the hearing, petitioner admitted that he was aware that the demolition of the building not only began...