

Matter of Kozlow v City of New York (2015 NY Slip Op 08960)





Matter of Kozlow v City of New York


2015 NY Slip Op 08960


Decided on December 8, 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 December 8, 2015

Sweeny, J.P., Acosta, Andrias, Moskowitz, JJ.


16329 101725/13

[*1] In re David R. Kozlow, Jr., Petitioner,
vThe City of New York, etc., Respondents.


The Law Offices of Fausto E. Zapata, Jr., P.C., New York (Fausto E. Zapata, Jr. of counsel), for petitioner.
Zachary W. Carter, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for respondents.

Determination of respondents, dated August 23, 2013, which dismissed petitioner from his position as a police officer, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Shlomo Hagler, J.], entered December 9, 2014), dismissed, without costs.
Substantial evidence supports respondents' finding that petitioner had engaged in numerous acts of misconduct, including failing to follow proper procedure in presenting a prisoner at the station house; delaying his return to the station house in order to earn overtime; abandoning a fixed post; failing to follow directions to proceed immediately to a post; writing improper comments on his monthly report; and being discourteous
to supervisors (see Matter of 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180-181 [1978]). There exists no basis to disturb the credibility determinations of the Hearing Officer (Matter of Berenhaus v Ward, 70 NY2d 436, 443 [1987]).
Given petitioner's prior disciplinary record, which included prior dismissal probations, and in light of the number and persistency of his infractions, termination from employment does not shock our sense of fairness (see Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]). Contrary to petitioner's contention, the Police Commissioner was authorized to impose the penalty of a 30-day suspension without pay and to dismiss petitioner from the police force (see Civil Service Law § 75[3-a]; Administrative Code of City of NY § 14-115[a]). Petitioner was also not entitled to his unused accrued vacation and sick leave since he was terminated from employment (see Grishman v New York, 183 AD2d 464, 465 [1st Dept 1992], lv denied 80 NY2d 760 [1992]).
Respondents properly denied issuing petitioner a Pistol License Inquiry Response Form. After being served with the charges and specifications, petitioner was placed on modified
assignment and his firearm privileges were revoked and he never sought a change in that status prior to the time of his dismissal (see Matter of Baloy v Kelly, 92 AD3d 521, 522 [1st Dept 2012]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 8, 2015
CLERK


