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

1433
TP 11-01255
PRESENT: SCUDDER, P.J., CENTRA, GREEN, GORSKI, AND MARTOCHE, JJ.


IN THE MATTER OF KEVIN W. FOSTER, PETITIONER,

                    V                             MEMORANDUM AND ORDER

AURELIUS FIRE DISTRICT, RESPONDENT.


LAW OFFICE OF NORMAN J. CHIRCO, AUBURN (NORMAN J. CHIRCO OF COUNSEL),
AND SCICCHITANO & PINSKY, PLLC, SYRACUSE, FOR PETITIONER.

THE LAW OFFICES OF MARK C. BUTLER, PLLC, WILLIAMSVILLE (MARK C. BUTLER
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, Cayuga County [Thomas G.
Leone, A.J.], entered June 7, 2011) to review a determination of
respondent. The determination suspended petitioner from respondent.

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

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
challenging the determination finding him guilty of misconduct based
upon actions constituting insubordination and failure to follow the
chain of command, and imposing a penalty. We note at the outset that
petitioner does not raise a substantial evidence issue, and thus
Supreme Court erred in transferring the proceeding to this Court (see
Matter of Smeraldo v Rater, 55 AD3d 1298, 1299). In the interest of
judicial economy, however, we will address the merits of the issues
raised by petitioner (see id.).

     We reject petitioner’s contention that the charge against him
should have been dismissed because it failed to specify any rule,
regulation, policy or bylaw that he violated. Petitioner conceded at
the administrative hearing that he was aware of respondent’s policies
with respect to the chain of command, and the record establishes that
he deliberately circumvented that chain of command to undermine the
authority of his superior officer. Thus, “given the facts of this
case, petitioner’s assertion that a specific act or misdeed must be
embodied in a formal rule or regulation before it may serve as a basis
for disciplinary action is unavailing” (Matter of Murphy v County of
Ulster, 218 AD2d 832, 833, lv denied 87 NY2d 804).

     We reject petitioner’s further contention that the penalty
                                 -2-                          1433
                                                         TP 11-01255

imposed, which includes suspension followed by a probationary period,
is “ ‘so disproportionate to the offense as to be shocking to one’s
sense of fairness’ ” (Matter of Kelly v Safir, 96 NY2d 32, 38, rearg
denied 96 NY2d 854).




Entered:   December 23, 2011                    Frances E. Cafarell
                                                Clerk of the Court
