SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
March 31, 1969
IN THE MATTER OF LOUIS LIEBOWITZ, PETITIONER,
ROBERT B. LOWERY, AS COMMISSIONER OF THE FIRE DEPARTMENT OF THE CITY OF NEW YORK, RESPONDENT
Concur -- Stevens, P. J., Eager, Tilzer, McGivern and Markewich, JJ.
Determination of respondent Fire Commissioner unanimously annulled, on the law, as to charge numbered 3 and as to the penalty of dismissal imposed upon the finding of guilt of charge numbered 1, specification (c) thereof, and otherwise confirmed, without costs and without disbursements, and the proceeding remanded to respondent for imposition of an appropriate penalty. As to charge 3, respondent concedes that petitioner's refusal to waive immunity before the Grand Jury does not provide a basis for dismissal (Gardner v. Broderick, 392 U.S. 273). As to the remaining charge, we find substantial evidence in the record for the finding of guilt in petitioner's having accepted a card at Christmas, exchangeable for a bottle of liquor, obviously emanating from a business concern whose premises it was petitioner's duty to inspect. We are of the opinion, however, that guilt of this sole remaining charge does not warrant the imposition of the severe penalty of dismissal (Matter of Murray v. Murphy, 24 N.Y.2d 150).
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