Ballentine v. Commissioner of N.Y.C. Dept

Full title: IN RE FRANCES BALLENTINE, Petitioner, v. COMMISSIONER OF THE NEW YORK CITY…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 3, 2003

304 A.D.2d 348 (N.Y. App. Div. 2003)

756 N.Y.S.2d 427

Opinion

711

April 3, 2003.

Determination of respondent Commissioner, dated December 15, 2000, terminating petitioner's employment with the New York City Department of Sanitation, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Michael Stallman, J.], entered September 26, 2001), dismissed, without costs.

Antonia Kousoulas, for petitioner.

Edward F.X. Hart, for respondent.

Before: Mazzarelli, J.P., Sullivan, Lerner, Friedman, Gonzalez, JJ.

Substantial evidence (see Matter of Pell v. Bd of Educ., 34 N.Y.2d 222, 231-232), including the testimony of three Department of Sanitation supervisors, established that petitioner had on numerous occasions violated Department of Sanitation rules respecting sick leave. The penalty imposed for the proven misconduct is not so disproportionate as to shock our sense of fairness (see Matter of Kelly v. Ward, 96 N.Y.2d 32, 38).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.