McGillicuddy v. Golar

Determination of the respondent dated May 3, 1972, dismissing petitioner from his position as a housing patrolman, modified, on the law and in the exercise of discretion, to the extent of reducing the punishment from dismissal to suspension without pay for a period of two years beginning June 17, 1971, and, as so modified, confirmed, without costs and without disbursements. Petitioner has been employed as a housing authority patrolman since 1954. After a hearing, petitioner was found guilty of misconduct in that, while on sick leave, petitioner failed to follow police regulations, including failure to notify his supervisors of the nature of the ailment, failure to obey a written order to contact his superior officer regarding sick leave follow-up- and failure to remain at his place of confinement. Petitioner’s prior record includes other violations of rules relating to sick leave and lateness. It is to be noted in petitioner’s favor that he had not been charged with a violation of regulations since 1967 and that the last charge was for lateness which resulted in a verbal reprimand. Dismissal after over 16 years of service for relatively minor offenses, none of which rises to a level of criminal activity is unduly harsh. Indeed, actual participation in criminal activity by some employees has received far more lenient treatment (see Matter of Mitthauer v. Patterson, 8 A D 2d 953, affd. 8 N Y 2d 37; Matter of Smith v. Murphy, 38 A D 2d 931; cf. Matter of Tolan v. Murphy, 39 A D 2d 197). In light of all the circumstances, we find therefore that the dismissal is so disproportionate to the offense as to be shocking to one’s sense of fairness (cf. Matter of Joshua v. McGrath, 42 A D 2d 535). Concur — Stevens, P. J., Markewich, Nunez and Lane, JJ.; Kupferman, J., dissents in the following memorandum: The situation here is similar to that in Matter of Joshua v. McGrath (42 A D 2d 535), just recently decided, and I must dissent for the reasons therein explained, which also, mutatis mutandis, apply here.