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In the Matter of Kevin W. Foster, Petitioner v. Aurelius Fire District

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


December 23, 2011

IN THE MATTER OF KEVIN W. FOSTER, PETITIONER,
v.
AURELIUS FIRE DISTRICT, RESPONDENT.

Matter of Matter of Foster v Aurelius Fire Dist.

Decided on December 23, 2011

Appellate Division, Fourth Department

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, GREEN, GORSKI, AND MARTOCHE, JJ.

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, Cayuga County [Thomas G. Leone, A.J.], entered June 7, 2011) to review a determination of respondent.

The determination suspended petitioner from respondent.

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 challenging the determination finding him guilty of misconduct based upon actions constituting insubordination and failure to follow the chain of command, and imposing a penalty. We note at the outset that petitioner does not raise a substantial evidence issue, and thus Supreme Court erred in transferring the proceeding to this Court (see Matter of Smeraldo v Rater, 55 AD3d 1298, 1299). In the interest of judicial economy, however, we will address the merits of the issues raised by petitioner (see id.).

We reject petitioner's contention that the charge against him should have been dismissed because it failed to specify any rule, regulation, policy or bylaw that he violated. Petitioner conceded at the administrative hearing that he was aware of respondent's policies with respect to the chain of command, and the record establishes that he deliberately circumvented that chain of command to undermine the authority of his superior officer. Thus, "given the facts of this case, petitioner's assertion that a specific act or misdeed must be embodied in a formal rule or regulation before it may serve as a basis for disciplinary action is unavailing" (Matter of Murphy v County of Ulster, 218 AD2d 832, 833, lv denied 87 NY2d 804).

We reject petitioner's further contention that the penalty imposed, which includes suspension followed by a probationary period, is " 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).

Entered: December 23, 2011

Frances E. Cafarell Clerk of the Court

20111223

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