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Lewis v. Lipsman

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 9, 2008

IN THE MATTER OF MARY LEWIS, PETITIONER,
v.
JOSHUA LIPSMAN, ETC., ET AL., RESPONDENTS.

Proceeding pursuant to CPLR article 78 to review a determination of Joshua Lipsman, as Commissioner of the Westchester County Department of Health, dated July 31, 2007, which adopted the finding and recommendation of a hearing officer dated July 17, 2007, made after a hearing, inter alia, finding the petitioner, Mary Lewis, guilty of certain charges of misconduct, and suspended her from employment without pay for a period of 45 days.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

DAVID S. RITTER, J.P., ANITA R. FLORIO, HOWARD MILLER and MARK C. DILLON, JJ.

(Index No. 17903/07)

DECISION & JUDGMENT

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

Contrary to the petitioner's contention, the determination that she engaged in misconduct is supported by substantial evidence in the record (see Matter of Berenhaus v Ward, 70 NY2d 436; Alexander v New York State Off. of Children & Family Servs., 50 AD3d 895). Further, "[a]n administrative penalty must be upheld unless it 'is so disproportionate to the offense as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law" (Matter of Kreisler v New York City Tr. Auth., 2 NY3d 775, 776, quoting Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 237). Here, it cannot be concluded, "as a matter of law, that the penalty [imposed] shocks the judicial conscience" (Matter of Kreisler v New York City Tr. Auth., 2 NY3d at 776; see Ellis v Mahon, 11 NY3d 754; Matter of Torrance v Stout, 9 NY3d 1022).

The petitioner's remaining contentions are without merit.

RITTER, J.P., FLORIO, MILLER and DILLON, JJ., concur.

20081209

© 1992-2008 VersusLaw Inc.



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