

Matter of Graci v Ponte (2017 NY Slip Op 00721)





Matter of Graci v Ponte


2017 NY Slip Op 00721


Decided on February 2, 2017


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 February 2, 2017

Sweeny, J.P., Acosta, Moskowitz, Kapnick, Kahn, JJ.


2967 101351/14

[*1]In re Rosaria Graci, Petitioner-Appellant,
vJoseph Ponte, as Commissioner of the New York City Department of Corrections, etc., et al., Respondents-Respondents.


Gail M. Blasie, PC, Garden City (Gail M. Blasie of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Damion K. L. Stodola of counsel), for respondents.

Judgment and order (one paper), Supreme Court, New York County (Jennifer G. Schecter, J.), entered January 28, 2016, denying the petition to vacate a determination of the New York City Civil Service Commission, dated July 16, 2014, which affirmed a determination of the New York City Department of Corrections, dated March 1, 2013, disqualifying petitioner from employment eligibility as a New York City Correction Officer, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The medical evaluator's conclusions were not arbitrary and capricious or unreasonable (see Matter of Griffin v City of New York, 127 AD3d 412 [1st Dept 2015], appeal dismissed 25 NY3d 1191 [2015]), and respondents were entitled to rely on the findings of their own medical personnel "even if those findings are contrary to those of professionals retained by the candidate" (Matter of City of New York v New York City Civ. Serv. Commn., 61 AD3d 584, 584 [1st Dept 2009]).
Further, petitioner has failed to preserve for appellate review her contention that she was entitled to a name-clearing hearing. Our review of the record, and petitioner's description of it in her brief, fail to show that such a request was properly made below. In any event, while petitioner disagrees with the medical evaluator's conclusions, she does not dispute the underlying facts upon which such conclusions were based (Matter of Johnson v Kelly, 35 AD3d 297, 298 [1st Dept 2006]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 2, 2017
CLERK


