HASTINGS, JAMES T. v. CITY OF SHERRILL ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1434
TP 11-01447
PRESENT: SCUDDER, P.J., CENTRA, GREEN, GORSKI, AND MARTOCHE, JJ.
IN THE MATTER OF JAMES T. HASTINGS, PETITIONER,
V MEMORANDUM AND ORDER
CITY OF SHERRILL AND ROBERT A. COMIS, CITY
MANAGER, RESPONDENTS.
DONALD R. GERACE, UTICA, FOR PETITIONER.
SAUNDERS, KAHLER, L.L.P., UTICA (GREGORY J. AMOROSO OF COUNSEL), FOR
RESPONDENTS.
Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Oneida County [Bernadette T.
Clark, J.], entered July 11, 2011) to review a determination of
respondents. The determination terminated the employment of
petitioner.
It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination terminating his employment as
police chief for respondent City of Sherrill following a hearing
conducted pursuant to Civil Service Law § 75. Petitioner’s employment
was terminated based on, inter alia, his continued association with
“person(s) notoriously suspected of illegal activities,” specifically
his 29-year-old son, outside the performance of petitioner’s official
duties. Contrary to petitioner’s contention, the departmental
regulations that he was found to have violated did not impermissibly
interfere with his constitutionally protected right of intimate
association (see generally Roberts v United States Jaycees, 468 US
609, 617-619; Matter of Morrisette v Dilworth, 59 NY2d 449, 452).
“[I]t is well established that it is within the State’s power to
regulate the conduct of its police officers even when that conduct
involves the exercise of a constitutionally protected right”
(Morrisette, 59 NY2d at 452), and we reject petitioner’s contention
that the departmental regulations at issue here are constitutionally
overbroad (see id. at 452-453). Moreover, the record supports the
conclusion that petitioner’s termination was not impermissibly based
solely on the existence of petitioner’s relationship with his son but
instead resulted from concern with regard to maintaining the integrity
of the police department (see Jenkins v Tyler, 167 F Supp 2d 652, 655;
-2- 1434
TP 11-01447
cf. Adler v Pataki, 185 F3d 35, 44-45). We further note that, in
light of the age of petitioner’s son and the absence of any evidence
that his son was mentally incapacitated, this case does not involve
the constitutionally protected interest in custodial relationships
between parents and their children (see generally Troxel v Granville,
530 US 57, 66; Pizzuto v County of Nassau, 240 F Supp 2d 203, 209-
211).
We conclude that petitioner’s contention that the charges were
insufficiently specific to put him on notice thereof “was the subject
of a separate unsuccessful CPLR article 78 proceeding and, as such, is
precluded by the doctrine of collateral estoppel” (Matter of Ruiz v
New York State Div. of Parole, 70 AD3d 1162, 1163; see generally Town
of Union v Pallet Co., 50 AD2d 628, 629, lv denied 38 NY2d 710). We
further conclude that the record contains substantial evidence to
support the determination with respect to all of the charges (see
generally Matter of Berenhaus v Ward, 70 NY2d 436, 443; 300 Gramatan
Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182).
Finally, we have considered petitioner’s remaining contentions and
conclude that they are without merit, or are not properly before us
because they involve a second set of charges that were not the subject
of the determination before us.
Entered: December 23, 2011 Frances E. Cafarell
Clerk of the Court