Argued-April 12, 2018
& Associates, Rhinebeck, NY (Russell G. Wheeler of
counsel), for appellant.
G. Callahan, Corporation Counsel, White Plains, NY (Daniel K.
Spencer of counsel), for respondents.
REINALDO E. RIVERA, J.P. SYLVIA O. HINDS-RADIX HECTOR D.
LASALLE VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
proceeding pursuant to CPLR article 78, the petitioner
appeals from an order and judgment (one paper) of the Supreme
Court, Westchester County (Rolf M. Thorson, J.), dated March
1, 2016. The order and judgment granted the respondents'
motion pursuant to CPLR 7804(f) and 3211(a)(7) to dismiss the
petition, and denied the petition and dismissed the
that the order and judgment is affirmed, with costs.
petitioner was employed by the City of White Plains as an
Assistant Director-Cable TV Access. The petitioner's
supervisor, James Kenny, the Executive Director of the
City's Cable Television Access Commission (hereinafter
the Commission), preferred charges against him for, inter
alia, violating policies against workplace violence, based on
an altercation the petitioner had with Kenny in the
workplace. After a hearing before a hearing officer, at which
Kenny testified, 13 of the factual specifications alleged in
the charges were sustained, and the hearing officer
recommended that the petitioner's employment be
terminated. Kenny, who was disqualified from reviewing the
hearing officer's recommendations and making a final
determination because he had preferred the charges against
the petitioner and testified at the hearing, delegated the
authority to review the hearing officer's recommendations
and make a final determination to William Brown, the
Commission's Chairman. Chairman Brown adopted the
findings of the hearing officer and imposed the recommended
penalty of termination of the petitioner's employment.
the petitioner commenced this proceeding pursuant to CPLR
article 78 seeking to annul that determination, arguing that
Chairman Brown was not a duly qualified individual to whom
Kenny could properly delegate the power to review the hearing
officer's recommendations and make a final determination.
The Supreme Court found the delegation from Kenny to Chairman
Brown to be proper, granted the respondents' motion to
dismiss the petition, and denied the petition and dismissed
the proceeding. The petitioner appeals.
Service Law § 75(2) provides that where, as here, an
officer having the power to remove an employee who is the
subject of disciplinary proceedings designates someone else
to conduct a hearing, the matter shall be referred back to
that officer or body for review and decision. Although
generally the authority to make the final determination as to
the charged employee's status may not be delegated,
''courts have recognized that the statutory command
must yield to an employee's right to a fair and impartial
hearing when such an official is personally involved in the
proceedings by preferring the charges at issue and testifying
at the hearing, or otherwise involving himself or herself
extensively in the proceedings. In such circumstances, such
an official acts improperly when he or she also renders the
final determination" (Matter of McComb v
Reasoner, 29 A.D.3d 795, 799). The Court of Appeals has
interpreted Civil Service Law § 72(2) to "require[
] that the power to discipline be delegated, if necessary,
within the governmental department's chain of
command" (Matter of Gomez v Stout, 13NY3d182,
187). "Whether a particular delegation will fall within
the affected department's chain of command, and, hence,
is permissible appears to turn upon whether the body or
official to whom review power is delegated possesses either
supervisory authority over the employee at issue or
administrative responsibility over the affected department
and its personnel" (Matter of Zlotnick v City of
Saratoga Springs, 122 A.D.3d 1210, 1216).
a motion to dismiss a pleading pursuant to CPLR 3211(a)(7),
the factual allegations in the pleading must be deemed true,
and the petitioner must be afforded the benefit of every
favorable inference" (Matter of Better World Real
Estate Group v New York City Dept. of Fin., 122 A.D.3d
giving the petitioner the benefit of every favorable
inference, we agree with the Supreme Court's
determination that Chairman Brown's position with the
Commission was within the affected department's chain of
command and, thus, the delegation of authority from Kenny to
Chairman Brown was proper (see Matter of Gomez v
Stout, 13 N.Y.3d at 187; Matter of Zlotnick v City
of Saratoga Springs, 122 A.D.3d 1210; Matter of
Guynup v County of Clinton, 74 A.D.3d 1552, 1554;
Matter of Chisolm v Copeland, 29 A.D.3d 575, 576).
we agree with the Supreme Court's determination to grant
the respondents' motion pursuant to CPLR 7804(f) and
3211(a)(7) to dismiss the petition, ...