        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

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TP 11-00777
PRESENT: SCUDDER, P.J., LINDLEY, SCONIERS, AND GORSKI, JJ.


IN THE MATTER OF MARK A. LICCIARDI, PETITIONER,

                    V                             MEMORANDUM AND ORDER

CITY OF ROCHESTER, RESPONDENT.


TREVETT CRISTO SALZER & ANDOLINA, P.C., ROCHESTER (LAWRENCE J.
ANDOLINA OF COUNSEL), FOR PETITIONER.

JEFFREY EICHNER, ACTING CORPORATION COUNSEL, ROCHESTER (IGOR SHUKOFF
OF COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Monroe County [Evelyn
Frazee, J.], entered November 9, 2010) to review a determination of
respondent. The determination terminated the employment of petitioner
as a firefighter.

     It is hereby ORDERED that the determination so appealed from is
unanimously modified on the law by granting the petition in part and
annulling those parts of the determination finding that petitioner is
guilty of specification 2 of Charge 1, Charges 2 and 3, specification
1 of Charge 4 and Charge 7, and as modified the determination is
confirmed without costs, and the matter is remitted to respondent for
new findings with respect to Charge 7 and reconsideration of the
penalty imposed.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking, inter alia, to annul the determination terminating his
employment as a firefighter for respondent. We agree with petitioner
that several of the findings of misconduct rendered following a
hearing are not supported by substantial evidence (see generally
Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of
Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230-
231). Four of the charges of misconduct involved petitioner’s part-
time outside employment while on sick leave from his employment as a
firefighter. The record of the hearing, however, contains no
“relevant proof as a reasonable mind may accept as adequate to support
[the] conclusion” that working an additional part-time job while
employed by respondent’s Fire Department (Department) was not
permitted or that the part-time job itself was improper or illegal
(300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176,
180). Thus, the determination that petitioner’s conduct violated the
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                                                         TP 11-00777

Department’s rule that members must at all times “ ‘conduct themselves
to the credit of the Department,’ ” as alleged in specification 2 of
Charge 1, and the rule that a firefighter shall “ ‘not conduct himself
[or herself] in a manner unbecoming[] or prejudicial to the good
reputation, the order, or discipline of the . . . Department,’ ” as
alleged in specification 1 of Charge 4, are not supported by
substantial evidence. We therefore modify the determination
accordingly.

     In Charge 2, respondent alleged that petitioner violated the
Department’s rule that a member shall not “ ‘knowingly[] or
intentionally[] make[] or cause to be made a false report in
connection with the . . . Department or other employees thereof’ ” by
submitting a letter from his treating physician that stated without
qualification that petitioner was unable to work during the time that
he was out on sick leave. At the hearing, however, the physician
testified that petitioner’s disability was causally related to a work
incident at the Department and that, although he was prevented from
working as a firefighter, the part-time job outside of the Department
was therapeutic. We thus conclude that the determination that
petitioner knowingly and intentionally made a false report, as alleged
in Charge 2, is not supported by substantial evidence, and we
therefore further modify the determination accordingly.

     Six of the charges of misconduct involved an incident in which
petitioner allegedly made inappropriate comments about a Chief Officer
of the Department. Charge 3 alleged that petitioner violated the
Department’s rule against “ ‘publically criticiz[ing] or ridicul[ing]
the Department, its policies, or other employees . . . .’ ” We
conclude that there is insufficient evidence from which to infer that
the comments in question were made in the presence of the general
public or otherwise publicly disseminated and thus that Charge 3 is
not supported by substantial evidence. Charge 7 alleged that
petitioner violated the Department’s rule against the intentional
making of a false report or statement concerning the Department or any
of its members by making inappropriate, false and defamatory remarks
about a Chief Officer. We agree with petitioner that respondent erred
in finding him guilty of that charge based on conduct that was not
alleged in the single specification supporting the charge (see Matter
of Brown v Saranac Lake Cent. School Dist., 273 AD2d 785, 785).
Indeed, petitioner was found guilty of that charge based upon the
finding that he had submitted false documentation regarding his sick
leave, rather than upon any finding concerning the comments in
question, and thus the finding of misconduct with respect to Charge 7
must be annulled as outside the scope of the charges (see id.). We
therefore further modify the determination accordingly. Inasmuch as
“the record contains evidence to support . . . [C]harge[ 7 as]
actually made,” we remit the matter to respondent for new findings on
that charge and reconsideration of the penalty imposed with respect to
all of the charges (id. at 786; see Matter of Benson v Board of Educ.
of Washingtonville Cent. School Dist., 183 AD2d 996, 997, lv denied 80
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                                               TP 11-00777

NY2d 756).




Entered:   September 30, 2011         Patricia L. Morgan
                                      Clerk of the Court
