IN RE: Application of Fernando LOSADA (2000)

Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of Fernando LOSADA, Petitioner, For a Judgment, etc., v. Howard SAFIR, etc., et al., Respondents.

Decided: December 12, 2000

TOM, J.P., ELLERIN, WALLACH, RUBIN and SAXE, JJ.

Eric Franz, for Petitioner. Dona B. Morris, for Respondents.

Determination of respondent Police Commissioner dated on or about February 19, 1999, which dismissed petitioner from his position as a police officer, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Richard Braun, J.], entered October 20, 1999), dismissed, without costs.

Substantial evidence supports respondent's findings that petitioner, while off-duty, was in a traffic-related altercation during which he wrongfully punched and kicked the driver of the other vehicle, causing him physical injury, and that petitioner filed a criminal complaint regarding the incident that falsely portrayed the other driver as the aggressor, causing his detention. No basis exists to disturb respondent's findings of credibility (see, Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444, 522 N.Y.S.2d 478, 517 N.E.2d 193). The penalty of dismissal does not shock our sense of fairness, particularly given that this was petitioner's second adjudication of violent misconduct within 16 months.

MEMORANDUM DECISION.

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