

Matter of Argenti v Town of Riverhead (2015 NY Slip Op 06811)





Matter of Argenti v Town of Riverhead


2015 NY Slip Op 06811


Decided on September 16, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on September 16, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.


2013-09851
 (Index No. 34946/12)

[*1]In the Matter of Michael Argenti, petitioner, 
vTown of Riverhead, et al., respondents.


Vitale and Levitt, P.C., Melville, N.Y. (Paul E. Levitt of counsel), for petitioner.
Lamb & Barnosky, LLP, Melville, N.Y. (Alyson Mathews and Matthew J. Mehnert of counsel), for respondents Town of Riverhead and Town Board of the Town of Riverhead.
Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, N.Y. (Andrea Andrade of counsel), for respondent George Woodson, as Superintendent of the Riverhead Highway Department.

DECISION & JUDGMENT
Proceeding pursuant to CPLR article 78 to review a determination of the Town Board of the Town of Riverhead dated July 17, 2012, which adopted in part and rejected in part the recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law § 75, finding the petitioner guilty of two charges of misconduct and/or insubordination, and terminated the petitioner's employment.
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with one bill of costs to the respondents appearing separately and filing separate briefs.
Our review of an administrative determination in an employee disciplinary case made after a hearing pursuant to Civil Service Law § 75 is limited to considering whether the determination was supported by substantial evidence (see Matter of Jeffery v Israel, 109 AD3d 543, 544; Matter of Guidarelli v Israel, 105 AD3d 739, 740). Here, the determination of the Town Board of the Town of Riverhead that the petitioner was guilty of two charges of misconduct and/or insubordination was supported by substantial evidence (see Matter of Jeffery v Israel, 109 AD3d at 544).
We may set aside an administrative penalty only if 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" (Matter of Waldren v Town of Islip, 6 NY3d 735, 736, quoting Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233; see Matter of Guidarelli v Israel, 105 AD3d at 740). Here, the penalty of dismissal is not so disproportionate to the offenses as to be shocking to one's sense of fairness (see Matter of Jeffery v Israel, 109 AD3d at 544; Matter of Guidarelli v Israel, 105 AD3d at 740), especially in light of the petitioner's prior disciplinary record.
BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


