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Daveiga v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 30, 2008

IN RE KYMEL DAVEIGA, PETITIONER,
v.
THE CITY OF NEW YORK, ET AL., RESPONDENTS.

Determination of respondent New York City Housing Authority, dated October 31, 2007, terminating petitioner's employment as Supervisor of Grounds, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Carol R. Edmead, J.], entered March 6, 2008), dismissed, without costs.

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.

Tom, J.P., Friedman, Gonzalez, McGuire, Acosta, JJ.

117047/07

The finding that petitioner violated respondent's policy, set forth in Chapter I, Rule XII, Section C(21) of its personnel manual, prohibiting employees from "commit[ting] any . . . violation of the law either on or off duty or on or off the work site implicating their fitness or ability to perform their duties," is supported by substantial evidence (see Matter of Consolidated Edison Co. of N.Y. v New York State Div. of Human Rights, 77 NY2d 411, 417 [1991]), namely, petitioner's admission that he possessed marijuana with an intent to use it while on respondent's property. We reject petitioner's argument that this rule required respondent to show that his possession and intent to use marijuana resulted, or was likely to result, in a demonstrably deficient job performance. Under the rule, reasonably interpreted (see Matter of Partnership 92 LP & Bldg. Mgt. Co., Inc. v State of N.Y. Div. of Hous. & Community Renewal, 46 AD3d 425, 429 [2007], appeal dismissed 10 NY3d 858 [2008]), it was enough to show that petitioner's possession and intent to use marijuana implicated his fitness, or suitability, for a supervisory position that is expected to promote respondent's efforts to provide a drug-free living environment for public housing residents, and its integrity in the eyes of other employees and residents. There is no evidence that, in reaching its determination, respondent, in violation of CPL 160.50 and 170.56(4) and Executive Law 296(16), relied on the sealed record of the criminal proceedings that were instituted against petitioner and dismissed. Having never requested the court's leave to conduct disclosure pursuant to CPLR 408, petitioner cannot complain on appeal that he was not granted such leave. We have considered and rejected petitioner's other arguments.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081230

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