HYNES v. CITY OF BUFFALO FIRE DEPARTMENT (2004)

 Petitioner commenced this CPLR article 78 proceeding seeking to set aside the determination finding him guilty of conduct unbecoming a firefighter and the use of vulgar language and imposing a 10-day unpaid suspension.   Contrary to petitioner's contention, the determination is supported by substantial evidence (see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 181-182, 408 N.Y.S.2d 54, 379 N.E.2d 1183).   Each of the three firefighters who filed complaints testified at the hearing that petitioner, a battalion chief, used a racial slur when referring to their ethnic group.   Furthermore, the record indicates that at least one of the firefighters became visibly upset at its use.   Also contrary to petitioner's contention, the penalty imposed must be upheld where, as here, it does not “shock[ ] the judicial conscience” (Matter of Kelly v. Safir, 96 N.Y.2d 32, 40, 724 N.Y.S.2d 680, 747 N.E.2d 1280, rearg. denied 96 N.Y.2d 854, 729 N.Y.S.2d 670, 754 N.E.2d 773).

It is hereby ORDERED that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed.

MEMORANDUM: