AMORE v. VILLAGE OF KENMORE (2004)

 In this CPLR article 78 proceeding, petitioner challenges the determination of respondent terminating him from his position as a bulk trash truck driver for its Department of Public Works.   We reject petitioner's contention that the determination is not supported by substantial evidence.   It is undisputed that petitioner was convicted of sexual abuse in the second degree during the period of his employment, which supports the imposition by respondent of discipline for misconduct (see Matter of Cromwell v. Bates, 105 A.D.2d 699, 481 N.Y.S.2d 137;  Matter of Zazycki v. City of Albany, 94 A.D.2d 925, 926, 463 N.Y.S.2d 614, lv. denied 60 N.Y.2d 558, 469 N.Y.S.2d 1026, 457 N.E.2d 809).   The penalty is not “so disproportionate to the offense as to be shocking to one's sense of fairness” (Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 237, 356 N.Y.S.2d 833, 313 N.E.2d 321;  see Matter of Kelly v. Safir, 96 N.Y.2d 32, 38, 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).   Petitioner expressly elected in writing to proceed with a hearing pursuant to Civil Service Law § 75 and waived his right to request review pursuant to the terms of the collective bargaining agreement (see generally Harms v. Riordan-Bellizi, 223 A.D.2d 624, 625, 636 N.Y.S.2d 839).   Supreme Court properly exercised its discretion in granting respondent's motion to consolidate pursuant to CPLR 602(a) (see generally Government Empls. Ins. Co. v. Uniroyal Goodrich Tire Co., 242 A.D.2d 765, 766, 661 N.Y.S.2d 847).   Finally, the challenge to petitioner's termination based upon respondent's alleged violation of Correction Law § 752 is barred by the doctrine of res judicata (see Matter of Doherty v. Cuomo, 76 A.D.2d 14, 18, 430 N.Y.S.2d 168) and, in any event, is lacking in merit (see Matter of Pisano v. McKenna, 120 Misc.2d 536, 538, 466 N.Y.S.2d 231).

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

MEMORANDUM: