Ivory v. City of New York ( 1986 )

— Order and judgment (one paper) of the Supreme Court, New York County (Gammerman, J.), entered September 11, 1985, which granted the petition and annulled the final determination of the Commissioner of the Department of Environmental Protection, dated October 5, 1984, terminating petitioner from city service, solely to the extent of remanding the matter to respondent for the imposition of a penalty other than that which would deprive him of his job and accumulated pension, is reversed, on the law, and the petition dismissed, without costs or disbursements.

The facts as set forth in the dissent are fairly stated. Both Special Term and the dissent view the penalty of termination imposed by the Commissioner to be shocking to the court’s sense of fairness. The majority is of the opinion, however, that it cannot interfere with the sanction imposed. Thus, while the penalty may have been severe, especially in light of petitioner’s length of service, the test mandated for a reviewing court is not whether it would have imposed the same or a different penalty, but whether the Commissioner acted reasonably within the scope of his authority (Matter of Pell v Board of Educ., 34 NY2d 222, 238). As noted by the Court of Appeals in Pell (p 238): "[p]ensions are not only compensation for services rendered, but they serve also as a reward for faithfulness to duty and honesty of performance”.

It should be noted that petitioner’s activities in collecting football bets while on duty attracted considerable notoriety in the small community in which he was employed. In light of all the facts present before the Commissioner, including the independent illegality of petitioner’s conduct while absent from his duties and the tendency in the small community for petitioner’s activities to bring disrepute upon the agency, it cannot be said that " 'the measure of punishment or discipline imposed is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness.’ ” (Matter of Pell v Board of Educ., supra, p 233.) Concur — Sullivan, Ross, Carro and Asch, JJ.