Miles v. City of New York — 251 A.D.2d 667

Majority

p. 667

In the Matter of Joseph Miles, Jr., Petitioner, v City of New York et al., Respondents.

[676 NYS2d 485]

—Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York City Police Department dated January 22, 1997, made after a hearing, which, upon finding that the petitioner was guilty of misconduct based upon eight charges, terminated him from his position as a New York City police officer.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

The petitioner’s argument that his due process rights were violated when, at the hearing, the Administrative Law Judge amended two of the specifications, is without merit (see, Matter of Cerio v New York City Tr. Auth., 228 AD2d 676 ; Matter of Ackerman v Ambach, 73 NY2d 323 , 333). Pleadings may be amended to conform to the proof at any time, provided that no prejudice is shown (cf., CPLR 3025 [a]; Matter of Cerio v New York City Tr. Auth., supra, at 676 ; Fitzpatrick v American Honda Motor Co., 78 NY2d 61 , 69; see, Matter of Benson v Board of Educ., 183 AD2d 996 ). The petitioner has failed to demonstrate any such prejudice (see also, Matter of Block v Ambach, 73 NY2d 323 ).

The determination was supported by substantial evidence (see, Matter of Giordani v New York City Tr. Auth., 247 AD2d 384 ; Matter of Treadway v New York City Tr. Auth., 235 AD2d 483 ; Matter of Cerio v New York City Tr. Auth., supra).

p. 668

“In view of the nature of the charge, the seriousness with which the [New York City] Police Department treats the occurrence of a discharge of an officer’s weapon, and the petitioner’s poor disciplinary record, termination is not ‘so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness’ ” (Matter of Cerio v New York City Tr. Auth., supra, at 677, quoting Matter of Pell v Board of Educ., 34 NY2d 222 , 233; see, Matter of O’Connor v Kelly, 215 AD2d 173 , 174). Great weight should be accorded the respondent’s determination (see, Matter of Cerio v New York City Tr. Auth., supra, citing Matter of Ahsaf v Nyquist, 37 NY2d 182 , 184).

The petitioner’s remaining contentions are without merit. Rosenblatt, J. P., Miller, Ritter and Goldstein, JJ., concur.

Cases cited

Cerio v. New York City Transit Authority 228 AD2d 676 N.Y. App. Div. 1996-06-24 p. 667
Block v. Ambach 73 NY2d 323 N.Y. 1989-03-30 at 333 p. 667
Fitzpatrick v. American Honda Motor Co. 78 NY2d 61 N.Y. 1991-05-07 at 69 p. 667
Benson v. Board of Education of the Washingtonville Central School District 183 AD2d 996 N.Y. App. Div. 1992-05-07 p. 667
Pell v. Board of Education 34 NY2d 222 N.Y. 1974-05-15 at 233 p. 668
Ahsaf v. Nyquist 37 NY2d 182 N.Y. 1975-06-12 at 184 p. 668