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In re Mascarella

Supreme Court of New York, First Department

March 6, 2014

In re James Mascarella, Petitioner-Respondent,
v.
Robert D. LiMandri, etc., Respondent-Appellant.

Michael A. Cardozo, Corporation Counsel, New York (Karen Griffin of counsel), for appellant.

La Reddola, Lester & Associates, LLP, Garden City (Robert J. La Reddola of counsel), for respondent.

Mazzarelli, J.P., Sweeny, Renwick, Freedman, Gische, JJ.

Order, Supreme Court, New York County (Lucy Billings, J.), entered August 21, 2012, which granted the petition to the extent of annulling respondent's determination dated January 5, 2011, to revoke petitioner's hoist machine operator license and remanding the proceeding for a new final determination by an impartial decision maker, unanimously reversed, on the law, without costs, the petition denied and the proceeding brought pursuant to CPLR article 78, dismissed.

Petitioner presented no evidence that respondent commissioner had any personal involvement in the disciplinary process, other than the initiation of charges in his name, or that respondent made public statements regarding the charges against petitioner, and no specific bias against him by the commissioner was alleged. Signing charges, without more, does not mandate recusal by the public official (see Kluglein v Shaw, 149 A.D.2d 511 [2d Dept 1989], lv denied 74 N.Y.2d 613 [1989] ; Agugliaro v Commissioner of Dept. of Transp. Of State of N.Y., 135 A.D.2d 711 [2d Dept 1987], lv denied 72 N.Y.2d 801 [1988]).

The penalty of revocation is not so disproportionate to the offense as to shock the conscience (see Featherstone v Franco, 95 N.Y.2d 550, 554 [2000]). The record reflects that respondent considered the factors set forth in Correction Law § 753 in determining the appropriate penalty to impose on petitioner, who pleaded guilty to conspiracy to commit extortion, a felony, and admitted that he obtained jobs in the construction industry through preferential treatment.


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