SCHWARTZBAUM v. HORN (2008)

Order, Supreme Court, New York County (Herman Cahn, J.), entered April 19, 2006, which, in this CPLR article 78 proceeding, denied the petition seeking to annul respondent's determination reassigning petitioner Harrison from Warden Level II to Warden Level I, and dismissed the petition, unanimously affirmed, without costs.

The determination reassigning Harrison from Warden Level II, where he served as respondent's Chief of Staff, to Warden Level I was not arbitrary or capricious, and was a rational exercise of discretion.   Although Harrison was under investigation for possible wrongdoing in allegedly giving a Department of Correction (DOC) snowblower to a correction officer for his own use, the record evidence, including respondent's testimony, establishes that Harrison's reassignment was not a disciplinary punishment, which would implicate the procedural protections afforded by Civil Service Law § 75, but one based on the assessment that Harrison lacked the requisite integrity and judgment to retain his position (compare Matter of Campbell v. New York City Tr. Auth., 253 A.D.2d 813, 677 N.Y.S.2d 632 [1998], lv. denied 93 N.Y.2d 805, 689 N.Y.S.2d 707, 711 N.E.2d 983 [1999] ).   The determination was within respondent's discretion (see Matter of Kitchings v. Jenkins, 85 N.Y.2d 694, 698, 628 N.Y.S.2d 36, 651 N.E.2d 904 [1995] ), and was based on Harrison's own admissions that after becoming aware of the allegations of wrongdoing as a result of the access he had to sensitive information in his position as respondent's Chief of Staff, he contacted the correction officer and instructed him to get rid of the snowblower.   There exists no basis to disturb the court's findings crediting respondent's testimony.