Citation Numbers: 39 A.D.2d 76
Judges: Cardamone, Gabrielli, Marsh
Filed Date: 5/18/1972
Status: Precedential
Modified Date: 1/12/2022
Charges were laid by. a Battalion Chief against petitioner, a Buffalo city fireman, specifying that the accused failed to obey an order from his superior officer to discontinue wearing tan boots in violation of a rule requiring the wearing of black shoes while on duty; that the accused was ordered to appear before the Fire Commissioner in full uniform but appeared in tan boots and that the accused while on duty wore tan boots in place of black shoes. Such conduct was alleged to be in violation of the rules and regulations of the Buffalo Fire Department requiring members to obey promptly all orders and commands and to observe all rules and regulations. Petitioner answered, denying any willful violation of the rules, and pursuant to article XI of the agreement between the city and the Firefighters’ Association, an informal hearing was held by the Commissioner. He found petitioner guilty of all of the charges presented, suspended him for 60 days with loss of pay, and transferred him to the Fire Prevention Bureau. A formal hearing was thereafter held before an arbitrator, who, by the terms of the employment agreement, was empowered to and did make his findings and recommendations which were referred to the department head for review and decision. In a lengthy report the arbitrator found on undisputed evidence that petitioner had failed to wear the uniform shoes as required by the rules and ordered by his superior officer and had worn instead boots of the highheeled “cowboy” variety, and made
While the arbitrator’s report “ is entitled to weight in determining the existence of substantial evidence particularly ‘ to the extent that material facts in any ease depend on the determination of credibility of witnesses as shown by their demeanor or conduct at the hearing ’ ” (Matter of Kelly v. Murphy, 20 N Y 2d 205, 210), no substantial issue is presented in the record as to the facts material to the Commissioner’s determination except as to whether or not the petitioner had black shoes available for wear at the times of the various alleged violations. On this point his testimony was contradicted by the testimony of his Battalion Chief, his Captain, and the Lieutenant who was his immediate superior. There being substantial evidence to support the determination of the Commissioner, his determination should not be disturbed (see Matter of Burke v. Bromberger, 300 N. Y. 248; Matter of Stork Rest. v. Boland, 282 N. Y. 256; CPLR 7803, subd. 4).
The determination should be confirmed, without costs.