Matter of Fernandez v New York City Tr. Auth. (2014 NY Slip Op 05700)
Matter of Matter of Fernandez v New York City Tr. Auth.
2014 NY Slip Op 05700
Decided on August 7, 2014
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 August 7, 2014Mazzarelli, J.P., Acosta, Freedman, Richter, Clark, JJ.


12892 260702/11

[*1] In re Carlos Fernandez, Petitioner-Appellant,
vNew York City Transit Authority, Respondent-Respondent.
Martin Druyan and Associates, New York (Martin Druyan of counsel), for appellant.
Office of the General Counsel, New York City Transit Authority, Brooklyn (Kavita K. Bhatt of counsel), for respondent.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered March 29, 2013, which denied the petition to vacate the arbitrator's decision upholding respondent's (NYCTA) termination of petitioner's employment, and granted NYCTA's cross motion to dismiss the petition, unanimously modified, on the law, to grant the petition to the extent of vacating the penalty of termination and to deny the cross motion, and the matter is remanded for the imposition of a lesser penalty, and otherwise affirmed, without costs.
Although we are troubled by the lack of a transcript to review the record of the arbitration proceeding, we have no basis to disturb the arbitrator's credibility findings. We find, however, that the termination of Fernandez's employment as the sanction for a single, alleged transgression is grossly excessive and shocks our sense of fairness (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233 [1974]). When the incident at issue occurred, Fernandez had been a NYCTA bus driver for 15 years, had received consistently positive performance evaluations, and had never been disciplined.
Moreover, by imposing the harsh penalty of termination on its employee for a first incident, NYCTA disregarded its own disciplinary guidelines. NYCTA's policy is found in the collective bargaining agreement between the agency and Fernandez's union, which provides that NYCTA "shall be guided by  the principle of progressive discipline' in the administration of its disciplinary procedures."
Here, depriving Fernandez of his livelihood because of a single incident "is disproportionate to the misconduct . . . or to the harm or risk of harm to the agency or institution, or to the public" (Pell, 34 NY2d at 234; see also Matter of Principe v New York City Dept. of Educ., 94 AD3d 431 [1st Dept 2012] [termination disproportionate for petitioner with spotless, five-year record], affd 20 NY3d 963 [2012]; Matter of Riley v City of New York, 84 AD3d 442 [1st Dept 2011] [termination disproportionate for petitioner with 15 years of service and good [*2]record]; Matter of Solis v Department of Educ. of City of N.Y., 30 AD3d 532, 532 [2d Dept 2006] [termination unwarranted for petitioner with "otherwise unblemished 12-year record").
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: AUGUST 7, 2014
CLERK


