Tolan v. Murphy
| Decision Date | 13 June 1972 |
| Citation | 39 A.D.2d 197,333 N.Y.S.2d 296 |
| Parties | Petition of John P. TOLAN, Petitioner, v. Patrick V. MURPHY, as Police Commissioner of The City of New York, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Joseph W. Allen, New York City, of counsel (John P. Schofield, New York City, with him on the brief; Schofield, Dienst & Allen, New York City, attorneys), for petitioner.
Irving Genn, New York City, of counsel (Stanley Buchsbaum, New York City, with him on the brief; J. Lee Rankin, Corp. Counsel), for respondents.
Before STEVENS, P.J., and McGIVERN, MARKEWICH, STEUER and CAPOZZOLI, JJ.
The petitioner in this Article 78 proceeding is John P. Tolan, a Detective Senior Grade of the New York City Police Department, of which he has been a member since 1952, serving honorably and without blemish. He would have us set aside a determination of the Police Commissioner that he be dismissed from the Department for misconduct. At the time charges were preferred against him, Detective Tolan had been serving as a Confidential Clerk in the Identification Section, having access to private files of the Information Section, containing specific information as to criminal records. He was accused, following an investigation, of selling information to the Wackenhut Corporation, essentially a private detective agency, in a manner contrary to the Rules and Procedures of the Department. It seems that the practice had gone on surreptitiously for over two years, the payments being clandestinely paid to the petitioner's wife.
Contemporaneously with the filing of charges against him, the petitioner applied for retirement privileges by application dated October 23, 1970, the expiration period for a challenge thereto ending on November 21, 1970, at midnight thereof. The removal proceedings commenced on October 28, 1970, and went forward sporadically, delays being occasioned by the petitioner's hospitalization, by the inability of the Department to produce main witnesses without a court order and transactional immunity, and also by the feigned difficulty of petitioner's attorney to make decisions in the physical absence of the petitioner. Come the final hours of November 21, 1970, and the Hearing Commissioner was engaged in a Beat-the-Clock contest, in order to prevent the vesting of Tolan's retirement before the completion of the trial. Largely because of this unseemly race, the trial was not entirely satisfactory, although there does seem to be a substantiality of evidence sufficient to justify a belief the petitioner was guilty as charged. Whether or not...
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Makwinski v. State, Bd. of Com'rs, Consol. Police and Firemen's Pension Fund, Division of Pensions, Dept. of Treasury
...character, reflective at all times of the common moral sense prevailing throughout the community." Cf. Tolan v. Murphy, 39 A.D.2d 197, 333 N.Y.S.2d 296, 298 (App.Div.1972). The judgment of the Appellate Division is reversed and the case remanded to the Pension Fund Commission with direction......
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...to one's sense of fairness. (Matter of Stolz v. Board of Regents, 4 A.D.2d 361, 364, 165 N.Y.S.2d 179, 182; Matter of Tolan v. Murphy, 39 A.D.2d 197, 333 N.Y.S.2d 296; Matter of Smith v. Murphy, 38 A.D.2d 931, 330 N.Y.S.2d There has been undue delay herein by both sides. Respondent waited a......
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...431, aff'd 8 N.Y.2d 37, 201 N.Y.S.2d 321, 167 N.E.2d 731; Smith v. Murphy, 38 A.D.2d 931, 330 N.Y.S.2d 146; cf. Matter of Tolan v. Murphy, 39 A.D.2d 197, 333 N.Y.S.2d 296. In light of all the circumstances, we find therefore that the dismissal is so disproportionate to the offense as to be ......
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