                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 21, 2016                   521210
________________________________

In the Matter of SCOTT C.
   PHILLIPS,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

NATHAN H. YORK, as Sheriff of
   Warren County,
                    Respondent.
________________________________


Calendar Date:   November 23, 2015

Before:   Peters, P.J., McCarthy, Egan Jr., Devine and Clark, JJ.

                             __________


      Tuttle Law Firm, Latham (James B. Tuttle of counsel), for
petitioner.

      Lemire, Johnson & Higgins, LLC, Malta (April J. Laws of
counsel), for respondent.

                             __________


Devine, J.

      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Warren County) to
review a determination of respondent terminating petitioner's
employment.

      Petitioner was employed by the Warren County Sheriff's
Office as a patrol officer. On December 13, 2013, two
disciplinary charges were filed against petitioner as a result of
his involvement in a preventable motor vehicle accident while on
duty, an accident that allegedly resulted from his careless or
negligent driving and that violated the terms of a September 2013
stipulation and agreement obliging him to exercise reasonable
                              -2-                521210

care in operating agency vehicles. Following a hearing pursuant
to Civil Service Law § 75, a Hearing Officer sustained both
charges and recommended that petitioner receive a letter of
reprimand, as well as a two-month suspension and a one-year term
of disciplinary probation. Respondent adopted the findings of
the Hearing Officer with respect to petitioner's guilt, but
determined that termination was the appropriate penalty.
Petitioner then commenced this CPLR article 78 proceeding
challenging respondent's determination, which was transferred to
this Court for resolution.

      We confirm. The facts surrounding the accident that led to
the disciplinary charges are not in significant dispute, and
petitioner does not assert in his brief that the findings of
guilt are unsupported by substantial evidence in the record. He
instead contends that respondent's determination was arbitrary
and capricious in that it departed, without explanation, from
prior disciplinary determinations imposing penalties well short
of termination. However, the prior determinations pointed to by
petitioner involve radically different misbehavior, a point noted
by the Hearing Officer (compare Matter of Girard v City of Glens
Falls, 173 AD2d 113, 117 [1991], lv denied 79 NY2d 757 [1992]).1
Accordingly, while respondent and his predecessor had previously
declined to terminate employees for significant misconduct, those
decisions are "factually distinguishable from this case and" did
not require further explanation by respondent (Matter of Board of
Educ. of Hyde Park Cent. School Dist. v Ambach, 142 AD2d 869, 870
[1988]; cf. Matter of Charles A. Field Delivery Serv. [Roberts],
66 NY2d 516, 521 [1985]).

      Petitioner also argues that the September 2013 stipulation
and agreement – which resolved disciplinary charges stemming from
an August 2013 automobile accident and placed him on a six-month
term of disciplinary probation during which he was obliged to
operate agency vehicles in a responsible manner – bars respondent
from terminating him. The stipulation and agreement did not


    1
        The same point is noted by respondent in his brief and,
as such, petitioner's contention that respondent conceded that he
behaved in an arbitrary and capricious manner is without merit.
                              -3-                521210

include language prohibiting respondent from seeking to terminate
petitioner for future misconduct, and only stated that respondent
was free in his "discretion and without completion of all the
formal provisions [of] . . . Civil Service Law § 75 . . . [to]
suspend[] [petitioner] without pay for a period not to exceed two
(2) months" if the terms of his probation were violated (emphasis
omitted). The stipulation, in other words, does nothing beyond
allowing respondent to avoid certain procedural requirements if
he thereafter suspends petitioner for a set period of time. If
the parties "intended the clause to have a broader meaning" and
preclude respondent from seeking a harsher penalty if he employed
the procedures set forth by Civil Service Law § 75, it was
incumbent upon them to "have specifically so stated" (New York
State Elec. & Gas Corp. v Aasen, 157 AD2d 965, 967 [1990]).

      Petitioner lastly argues that the penalty imposed by
respondent constituted an abuse of discretion in that "it is so
disproportionate to the offense as to shock our sense of
fairness" (Matter of Sickler v Town of Hunter, 3 AD3d 727, 728
[2004]; see Matter of Turzik v VanBlarcum, 100 AD3d 1338, 1339
[2012]). From March 2011 to December 2013, petitioner was
involved in several preventable accidents while operating patrol
vehicles. Despite progressive discipline imposed as a result of
those accidents, it is evident that petitioner has failed to
develop the good judgment necessary to avoid them. Respondent
appropriately found from this history that petitioner would pose
a risk to persons and property if he continued to hold his
position as a patrol officer and, thus, we cannot say that the
penalty of termination shocks our sense of fairness (see Matter
of Gibides v Powers, 45 NY2d 994, 995-996 [1978]; Matter of
Massaria v Betschen, 290 AD2d 602, 605 [2002]; Matter of Malloch
v Ballston Spa Cent. School Dist., 249 AD2d 797, 800 [1998], lv
denied 92 NY2d 810 [1998]).

     Peters, P.J., McCarthy, Egan Jr. and Clark, JJ., concur.
                              -4-                  521210

      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
