IN RE: Application of Timothy BUTLER (1998)

Determination of respondent New York City Department of Corrections, dated March 10, 1993, dismissing petitioner from his position as a correction 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 [Martin Stecher, J.], entered October 5, 1993), dismissed, without costs.

Respondent's determination that petitioner used impermissible force against an inmate and submitted a false report about the incident is supported by substantial evidence, including the testimony of the inmate, the inmate's wife and the girlfriend of another inmate that, after the inmate struck petitioner, he was restrained by other correction officers while petitioner repeatedly punched and kicked him in the head and stomach, and medical evidence detailing injuries consistent with the type of beating described by the witnesses.   There is no basis to disturb the findings of credibility of the Administrative Law Judge (see, Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444, 522 N.Y.S.2d 478, 517 N.E.2d 193), who aptly noted, among other things, inconsistencies between the written report submitted by petitioner and his hearing testimony as to how the altercation with the inmate started, and documentary evidence impeaching petitioner's testimony that he had never before submitted a false report.

MEMORANDUM DECISION.