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Di Vito v. State

48 N.Y.2d 761 Court N.Y. Decision date 1979-11-13 English

Contents

Majority

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In the Matter of John Di Vito, Appellant, v State of New York, Department of Labor, et al., Respondents.
Argued October 12, 1979;
decided November 13, 1979
p. 762
APPEARANCES OF COUNSEL
Carmín R. Putrino for appellant.
Robert Abrams, Attorney-General (Maurice K. Peaslee and Shirley Adelson Siegel of counsel), for respondents.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with

p. 763
costs. Petitioner’s "persistent unwillingness to accept the directives of his superiors” clearly supports the finding of insubordination (Matter of Short v Nassau County Civ. Serv. Comm., 45 NY2d 721 , 723). Moreover, in cases involving internal discipline as distinct from external regulation the administrative agency has a discretion of broader range because of "the complexity and sensitiveness of personnel administration in continuing intraorganizational relationships” (Matter of Ahsaf v Nyquist, 37 NY2d 182 , 185).

Against that background the sentence in the Appellate Division memorandum suggesting that petitioner’s obduracy "casts serious doubt over his ability to hold a managerial position”, to which petitioner points, furnishes no basis for appeal. Far from importing into the proceeding incompetence, a charge never made by the department, it related, and was germane, to the severity of punishment. Nor in view of the broad discretion accorded the department in such matters can we say that the penalty it imposed, though severe, was " 'shocking to one’s sense of fairness’ ” (Matter of Pell v Board of Educ., 34 NY2d 222 , 233). The department had the right in fixing the penalty to consider, among other things, that petitioner’s intransigence prolonged the impasse between him and the employees under him to the detriment of its work.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.

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