IN RE: Application of Michael VARGAS (1997)

Determination of respondent Waterfront Commission of New York Harbor, dated December 11, 1996, which revoked petitioner's pier guard license effective October 14, 1996, with leave to reapply in one year thereafter for a permanent license, unanimously modified, on the law, the facts and in the exercise of discretion, to reduce the penalty from revocation to suspension of the license from October 14, 1996 to the date of this Court's order, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Richard Lowe, II], entered March 12, 1997), is otherwise disposed of by confirming the remainder of the determination, without costs.

Substantial evidence supports respondent's findings that petitioner, who had been a licensed port watchman or pier guard for approximately 21 years without incident, on one occasion failed to wear a proper visor and badge and to carry a memo book, and on another occasion failed to inspect two containers “in a diligent, conscientious and careful manner”.   Goods were taken from one of the containers but, because petitioner was not charged as a participant in the theft, and in view of his prior unblemished record, we find that the penalty of revocation is excessive to the extent indicated (cf., Matter of Tannenholz v. Waterfront Commn. of N.Y. Harbor, 36 A.D.2d 930, 322 N.Y.S.2d 973, affd. 30 N.Y.2d 668, 332 N.Y.S.2d 103, 282 N.E.2d 888;  Matter of Sessa v. Waterfront Commn. of N.Y. Harbor, 24 A.D.2d 450, 260 N.Y.S.2d 612, affd. 18 N.Y.2d 759, 274 N.Y.S.2d 684, 221 N.E.2d 464;  Matter of Matuszewski v. Waterfront Commn. of N.Y. Harbor, 37 A.D.2d 820, 324 N.Y.S.2d 997).   Significantly, it appears that respondent rejected the Administrative Law Judge's recommendation of a three-month suspension based on its counsel's unchanged claims in his exception to this recommendation, made after the completion of the hearing and without opportunity given to petitioner to defend, that petitioner was involved in the theft.

MEMORANDUM DECISION.