E. Humbach, County Attorney, New City, NY (Linda H. Grant of
counsel), for appellants.
Feerick Lynch MacCartney, PLLC, South Nyack, NY (Stephen M.
Honan of counsel), for respondent.
C. DILLON, J.P. JEFFREY A. COHEN COLLEEN D. DUFFY FRANCESCA
E. CONNOLLY, JJ.
DECISION & ORDER
proceeding pursuant to CPLR article 78 to review a
determination of the Commissioner of the Rockland County
Department of Social Services, dated October 10, 2014, which,
upon a determination of the Commissioner of the Rockland
County Department of Social Services dated June 7, 2012,
adopting the recommendation of a hearing officer dated June
6, 2012, made after a hearing, finding the petitioner guilty
of gross misconduct, and terminating his employment, and upon
remittitur from this Court by decision, order, and judgment
dated October 1, 2014 (see Matter of Sullivan v County of
Rockland, 121 A.D.3d 700), again terminated his
employment, the County of Rockland, the Rockland County
Department of Social Services, and Susan Sherwood, as
Commissioner of the Rockland County Department of Social
Services, appeal from a judgment of the Supreme Court,
Rockland County (Kelly, J.), dated April 23, 2015, which, in
effect, granted the petition and remitted the matter for the
imposition of a lesser penalty.
that the judgment is affirmed, with costs.
petitioner was employed as a caseworker with the Rockland
County Department of Social Services (hereinafter DSS) since
1990. In December 2011, the County charged the petitioner
with gross misconduct-falsification of business records, in
two specifications, for allegedly making false entries in
DSS's computer system. After a hearing, a hearing officer
found that the County had submitted substantial evidence in
support of both specifications, and recommended that the
petitioner be terminated from his employment. On June 7,
2012, the Commissioner of DSS (hereinafter the Commissioner)
issued a determination adopting the hearing officer's
findings of fact and recommendation, and terminated the
petitioner commenced a CPLR article 78 proceeding to review
the determination. This Court, upon determining that
specification number two was not supported by substantial
evidence, granted the petition to the extent of annulling so
much of the determination as found the petitioner guilty of
specification number two, vacated the penalty imposed,
otherwise confirmed the determination, and remitted the
matter to the Commissioner for a new determination of the
appropriate penalty to be imposed (see Matter of Sullivan
v County of Rockland, 121 A.D.3d 700).
Commissioner then issued a determination dated October 10,
2014, again imposing a penalty of termination of employment.
The petitioner commenced this CPLR article 78 proceeding to
review that determination. The Supreme Court granted the
petition and remitted the matter for the imposition of a
lesser penalty. The County, Commissioner, and DSS
(hereinafter collectively the appellants) appeal.
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 (see Matter of Waldren v
Town of Islip, 6 N.Y.3d 735, 736; Matter of Kreisler
v New York City Tr. Auth., 2 N.Y.3d 775, 776; Matter
of Harp v New York City Police Dept., 96 N.Y.2d 892,
894; Matter of Sassi v City of Beacon, 145 A.D.3d
789). A result is shocking to one's sense of fairness if
the sanction imposed is so grave in its impact on the
individual subject to it that it is disproportionate to the
misconduct, incompetence, failure, or turpitude of the
individual, or the harm or risk of harm to the agency or
institution, or to the public generally visited or threatened
by the derelictions of the individuals (see Kelly v
Safir, 96 N.Y.2d 32, 38; Matter of Tomczak v Board
of Educ., Eastchester Union Free Sch. Dist., 144 A.D.3d
1165, 1166; Matter of Smith v Tuckahoe Hous. Auth.,
111 A.D.3d 642, 643).
the penalty imposed is so grave in its impact on the
petitioner that it is disproportionate to the misconduct, or
the risk of harm to DSS or the public. Under the
circumstances of this case, the penalty of termination of
employment for a single incident is so disproportionate to
the offense as to be shocking to one's sense of fairness,
and constitutes an abuse of discretion as a matter of law
(see Matter of Diefenthaler v Klein, 27 A.D.3d 347,
348; Matter of Murray v Ilion Water Commn., 9 A.D.3d
903, 904; Matter of Lewandowski v Port Auth. of N.Y.
& N.J., 229 A.D.2d 360, 361; Matter of Allman v
Koehler, 161 A.D.2d 114, 115). The petitioner's
actions were not so egregious or of such moral turpitude as
to justify termination of his employment in light of his
previously unblemished record (cf. Matter of Douglas v
New York City Bd./Dept. of Educ., 87 A.D.3d 856, 857;
Matter of Brais v Board of Educ. of Massena Cent. School
Dist., 92 A.D.2d 706, 707).
the Supreme Court properly, in effect, granted the petition
and remitted the matter for ...