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New York City Department of Sanitation v. New York City Civil Service Commission

68 N.Y.2d 978 Court N.Y. Decision date 1986-11-20 English

Contents

Majority

p. 978
In the Matter of New York City Department of Sanitation, Appellant, v New York City Civil Service Commission et al., Respondents.
Argued October 15, 1986;
decided November 20, 1986
p. 979
APPEARANCES OF COUNSEL
Frederick A. O. Schwarz, Jr., Corporation Counsel (Kristin M. Helmers, Leonard Koemer and Stephen J. McGrath of counsel), for appellant.
Richard Biaggi and Carlos J. Cuevas for respondents.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court, New York County, with instructions to remand to the New York City Civil Service Commission for imposition of an appropriate penalty.

Appellant McCormick was dismissed from his job as a New York City Sanitation Department employee for violations of departmental sick leave policies. The New York City Civil Service Commission, reviewing the penalty pursuant to Civil Service Law § 76, modified the penalty of dismissal to a 44-day suspension. The rule, expressed in Matter of City Council v Carbone ( 54 AD2d 461 ), allows a court reviewing the decision of a civil service commission to reverse only if the modification of the penalty by the commission is " 'so disproportionate

p. 980
to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness’ ” (see, Matter of Pell v Board of Educ., 34 NY2d 222 , 233). Under the circumstances, the modification of the penalty by the New York City Civil Service Commission was so lenient as to require reversal (see, Matter of Riforgiato v Board of Educ., 86 AD2d 757 ). The matter should be returned to the New York City Civil Service Commission for imposition of an appropriate penalty (see, Rob Tess Rest. Corp. v New York State Liq. Auth., 49 NY2d 874 ; Matter of Harris v Mechanicville Cent. School Dist., 45 NY2d 279 ).

Chief Judge Wachtler and Judges Meyer, Simons, Alexander, Titone and Hancock, Jr., concur in memorandum; Judge Kaye taking no part.

Order reversed, etc.

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