Brown v. Camillus Volunteer Fire Department, Inc.

—Determination unanimously annulled on the law without costs and petition granted. Memorandum: Petitioners, retired lifetime members of the Camillus Volunteer Fire Department, Inc. (VFD), commenced this CPLR article 78 proceeding seeking to annul the determination expelling them from membership in the VFD. Initially, we note that the determination was made pursuant to VFD’s constitution and bylaws and not “as a result of a hearing held * * * pursuant to direction by law” (CPLR 7803 [4]; see, Matter of Armstrong v Centerville Fire Co., 83 NY2d 937, 939; Matter of Mehdi v Board of Mgrs. of Jones Mem. Hosp., 116 AD2d 1024, 1025), and thus Supreme Court erred in transferring the proceeding to this Court to consider the substantial evidence issue. The issues whether the determination was arbitrary and capricious or an abuse of discretion and whether the penalty of expulsion was an abuse of discretion should have been resolved in the first instance by Supreme Court (see, Matter of Mehdi v Board of Mgrs. of Jones Mem. Hosp., supra, at 1025). Nevertheless, we will address the merits of the petition in the interest of judicial economy (see, Matter of McGann-Wayne v Lippa, 284 AD2d 279).

“Rationality is what is reviewed under both the substantial evidence rule and the arbitrary and capricious standard” (Matter of Pell v Board of Educ., 34 NY2d 222, 231; see, Matter of Mehdi v Board of Mgrs. of Jones Mem. Hosp., supra, at 1025). We conclude that the determination that petitioners violated a by-law provision prohibiting members from “using indecent or profane language” was, in the circumstances of this case, arbitrary and capricious, and lacks a rational basis. We further conclude that the penalty of expulsion is “so disproportionate to the offense as to be shocking to one’s sense of fairness” (Matter of Pell v Board of Educ., supra, at 237; see, Matter of Kelly v Safir, 96 NY2d 32, 38, rearg denied 96 NY2d 854). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Onondaga County, Major, J.) Present — Pigott, Jr., P. J., Wisner, Scudder, Burns and Gorski, JJ.