

Matter of Modell v Kelly (2015 NY Slip Op 02686)





Matter of Modell v Kelly


2015 NY Slip Op 02686


Decided on March 31, 2015


Appellate Division, First 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 March 31, 2015

Tom, J.P., Andrias, Saxe, Manzanet-Daniels, Kapnick, JJ.


14648 101061/13

[*1] In re Lieutenant Daniel Modell, etc., Petitioner,
vRaymond W. Kelly, etc., et al., Respondents.


Edwin Ira Schulman, Kew Gardens, for petitioner.
Zachary W. Carter, Corporation Counsel, New York (Devin Slack of counsel), for respondents.

Determination of respondent Police Commissioner, dated April 1, 2013, finding that petitioner police officer engaged in conduct prejudicial to the good order, efficiency or discipline of the police department by soliciting the assistance of other officers in preventing the prosecution of summonses issued to other individuals on two occasions between September 2010 and September 2011, and imposing a penalty of one year of suspended-dismissal probation, five days of suspension, and the forfeiture of 25 vacation days, 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 [Cynthia S. Kern, J.], entered November 21, 2013), dismissed, without costs.
Substantial evidence supports respondent's determination that petitioner asked other officers for help in preventing the prosecution of summonses issued to other individuals on two occasions between September 2010 and September 2011 (see Matter of Berenhaus v Ward , 70 NY2d 436, 443 [1987]). The inference of the hearing officer that petitioner engaged in this conduct on two occasions is rationally based on petitioner's admission that he requested of another officer that a summons be "taken care of" "[a] couple of times" during that period. We see no basis in the record for disturbing the hearing officer's credibility findings (see Matter of Berenhaus , 70 NY2d at 443).
We have considered petitioner's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 31, 2015
CLERK


