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Drury v. Village of North Syracuse

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


October 1, 2010

IN THE MATTER OF PHILLIP DRURY, PETITIONER,
v.
VILLAGE OF NORTH SYRACUSE AND JOHN HEINDORF, MAYOR OF VILLAGE OF NORTH SYRACUSE, RESPONDENTS.

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Onondaga County [Brian F. DeJoseph, J.], entered February 17, 2010) to review a determination of respondents. The determination terminated petitioner's employment.

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.

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, SCONIERS, AND PINE, JJ.

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum

Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, to annul the determination terminating his employment as Code Enforcement Officer and Fire Marshall of respondent Village of North Syracuse following a hearing pursuant to Civil Service Law § 75. We conclude that the determination is supported by substantial evidence, i.e., "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180; see CPLR 7803 [4]; see generally Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230-231). We further conclude that, under the circumstances of this case, the penalty of termination of employment does not constitute an abuse of discretion as a matter of law because it is not " so disproportionate to the offense as to be shocking to one's sense of fairness' " (Matter of Kelly v Safir, 96 NY2d 32, 38, rearg denied 96 NY2d 854; see Matter of Smeraldo v Rater, 55 AD3d 1298, 1299).

20101001

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