Opinion
587
March 25, 2003.
Determination of respondent Department of Sanitation, dated May 18, 2000, finding petitioner guilty of specified misconduct and imposing the penalty of dismissal, 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 [Bruce Allen, J.], entered February 7, 2001), dismissed, without costs.
Leonard Zack, for petitioner.
Scott Shorr, for respondents.
Before: Buckley, P.J., Rosenberger, Lerner, Friedman, Gonzalez, JJ.
The determination was supported by substantial evidence (Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444; see also People ex rel. Vega v. Smith, 66 N.Y.2d 130) that petitioner was guilty of misconduct when he failed to respond to telephone calls, failed to report to the Department clinic, was absent without leave, and did not maintain a valid driver's license, all in violation of Department of Sanitation rules. The Administrative Law Judge properly rejected petitioner's various excuses and explanations. The penalty of dismissal was not disproportionate to the offenses and does not shock the conscience (see Matter of Kelly v. Safir, 96 N.Y.2d 32, 39-40), particularly since petitioner displayed a flagrant pattern of sick leave abuses.
We have considered and rejected petitioner's remaining arguments.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.