Harp v. New York City Police Department , 96 N.Y.2d 892 ( 2001 )

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the petition dismissed in its entirety.

After a disciplinary hearing, the Police Commissioner found that petitioner Jeffrey Harp, an Internal Affairs officer, wrongfully made false and misleading statements while under oath at an official interview regarding his activities in connection with a matter under Internal Affairs investigation. The Appellate Division held that this determination was supported by substantial evidence. Finding the administrative penalty to be excessive, the court vacated petitioner’s dismissal and remanded for reconsideration.

An administrative penalty must be upheld unless it “is so disproportionate to the offense as to be shocking to one’s sense of fairness,” thus constituting an abuse of discretion as a matter of law (see, Matter of Pell v Board of Educ., 34 NY2d 222, 237; CPLR 7803 [3]). Under the circumstances of this case, it cannot be concluded that, as a matter of law, “the penalty of dismissal imposed by the Commissioner shocks the judicial conscience” (Matter of Kelly v Safir, 96 NY2d 32, 39-40; see also, Matter of Ansbro v McGuire, 49 NY2d 872, 874).

Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order, insofar as appealed from, reversed, etc.