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

1132
TP 13-00486
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF PAMELA MARCOTTE, PETITIONER,

                     V                            MEMORANDUM AND ORDER

PAUL HOLAHAN, COMMISSIONER OF ENVIRONMENTAL
SERVICES AND CITY OF ROCHESTER, RESPONDENTS.


CHAMBERLAIN D’AMANDA OPPENHEIMER & GREENFIELD LLP, ROCHESTER (MATTHEW
J. FUSCO OF COUNSEL), FOR PETITIONER.

ROBERT J. BERGIN, CORPORATION COUNSEL, ROCHESTER (YVETTE CHANCELLOR
GREEN 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, Monroe County [Evelyn
Frazee, J.], entered March 18, 2013) to annul a determination finding
petitioner guilty of specified acts of misconduct and imposing a
penalty of demotion.

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

     Memorandum: Petitioner, an employee of respondent City of
Rochester, commenced this CPLR article 78 proceeding seeking to annul
the determination finding her guilty of specified acts of misconduct
and imposing a penalty of demotion. Contrary to petitioner’s
contention, 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). Additionally, we
conclude that the penalty of demotion “is not so disproportionate to
the offense[s] as to be shocking to one’s sense of fairness, and thus
does not constitute an abuse of discretion as a matter of law” (Matter
of Szczepaniak v City of Rochester, 101 AD3d 1620, 1621 [internal
quotation marks omitted]).




Entered:   November 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
