Sommers v. Board of Fire Com'rs of Mastic Beach Fire Dist.

• Decision Date: 14 February 1984
• Parties: In the Matter of Joseph SOMMERS, Petitioner, v. BOARD OF FIRE COMMISSIONERS OF the MASTIC BEACH FIRE DISTRICT, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 33

472 N.Y.S.2d 33

99 A.D.2d 784

In the Matter of Joseph SOMMERS, Petitioner, v. BOARD OF FIRE COMMISSIONERS OF the MASTIC BEACH FIRE

DISTRICT, Respondent.

Supreme Court, Appellate Division,

Second Department.

Feb. 14, 1984.

Correri & Sapienza, Mineola (Anthony F. Correri, Mineola, of counsel), for petitioner.

John P. Finnerty, Bay Shore, for respondent.

Before LAZER, J.P., and THOMPSON, BRACKEN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Proceeding pursuant to CPLR article 78 to review a determination of respondent Board of Fire Commissioners of the Mastic Beach Fire District, dated December 24, 1982, which, after a hearing, inter alia, ordered petitioner removed as a member of the Mastic Beach Fire Department.

Determination confirmed and proceeding dismissed on the merits, without costs or disbursements.

Initially, it is noted that respondent Board of Fire Commissioners of the Mastic Beach Fire District had jurisdiction, pursuant to section 209-l of the General Municipal Law, to entertain removal proceedings based upon the misconduct of petitioner, a volunteer fireman, who had the status of a life member of the Mastic Beach Fire Department (see Matter of Acker v. Board of Fire Comrs., Kings Park Fire Dist., 25 A.D.2d 282, 269 N.Y.S.2d 628; Matter of Busking v. Kronimus, 41 Misc.2d 985, 247 N.Y.S.2d 149, affd. 22 A.D.2d 888, 255 N.Y.S.2d 312).

While petitioner raised in his petition the question of whether respondent board's finding of misconduct was based upon substantial evidence, in his brief, petitioner concedes that a charge of misconduct can be supported by a guilty plea in a prior criminal prosecution. Accordingly, petitioner's pleas of guilty to the crimes of filing of a false instrument in the second degree and petit larceny, as evidenced by a certified copy of the transcript of the minutes of the plea proceedings and a certified copy of the disposition, were sufficient to support the board's determination of misconduct (cf. Matter of Pozarny v. State of New York, 92 A.D.2d 954, 460 N.Y.S.2d 845; Matter of Chilson v. Board of Educ. of City of N.Y., 41 A.D.2d 739, 341 N.Y.S.2d 143, affd. 34 N.Y.2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321). Furthermore, the penalty of removal imposed herein was not " ' "so disproportionate to the offense[s], in light of all the circumstances, as to be shocking to one's sense of fairness" ' " (Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321, quoting from Matter of...