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

473
TP 15-01708
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


IN THE MATTER OF NICHOLAS CASTIGLIA, PETITIONER,

                      V                              MEMORANDUM AND ORDER

COUNTY OF ONTARIO AND PHILLIP POVERO, SHERIFF OF
ONTARIO COUNTY, RESPONDENTS.


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

GARY L. CURTISS, COUNTY ATTORNEY, CANANDAIGUA (LEA T. NACCA OF
COUNSEL), FOR RESPONDENTS.


     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, Ontario County [Thomas A.
Stander, J.], entered October 2, 2015) to annul a determination of
respondents. The determination terminated the employment of
petitioner.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner commenced this proceeding seeking to
annul the determination finding him guilty of disciplinary charges and
terminating his employment as a correction officer for respondents.
We conclude that the determination is supported by substantial
evidence, i.e., “such relevant proof as a reasonable mind may accept
as adequate to support a conclusion or ultimate fact” (300 Gramatan
Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180; see CPLR
7803 [4]; see generally Matter of Pell v Board of Educ. of Union Free
Sch. Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester
County, 34 NY2d 222, 230-231). We further conclude that, in view of
petitioner’s extensive disciplinary record, the penalty of terminating
his employment is not “so disproportionate to the offense[s] as to be
shocking to one’s sense of fairness,” and thus it does not constitute
an abuse of discretion as a matter of law (Matter of Kelly v Safir, 96
NY2d 32, 38, rearg denied 96 NY2d 854; see Matter of Seltzer v City of
Rochester, 77 AD3d 1300, 1301).



Entered:    June 10, 2016                          Frances E. Cafarell
                                                   Clerk of the Court
