IN RE: Christian WAUGH

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Christian WAUGH, Petitioner-Appellant, v. The NEW YORK CITY FIRE DEPARTMENT, Respondent-Respondent.

Decided: November 30, 2006

ANDRIAS, J.P., FRIEDMAN, SULLIVAN, NARDELLI, MALONE, JJ. Abraham Abramovsky, New York, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Norman Corenthal of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Karen S. Smith, J.), entered December 20, 2005, which denied the petition and dismissed the proceeding, brought pursuant to CPLR article 78, to annul a determination of respondent New York City Fire Department, dated December 2, 2004, finding petitioner guilty of various disciplinary infractions and terminating his employment as a firefighter, unanimously affirmed, without costs.

 The use immunity afforded petitioner at a departmental interview investigating possible criminal activity was sufficient to protect his state and federal constitutional rights against self-incrimination (see People v. Corrigan, 80 N.Y.2d 326, 329, 590 N.Y.S.2d 174, 604 N.E.2d 723 [1992];  Matter of Matt v. Larocca, 71 N.Y.2d 154, 159-160, 524 N.Y.S.2d 180, 518 N.E.2d 1172 [1987], cert. denied 486 U.S. 1007, 108 S.Ct. 1734, 100 L.Ed.2d 197 [1988] );  transactional immunity was not required (Matter of Cortes v. County of Nassau, 248 A.D.2d 616, 617, 670 N.Y.S.2d 509 [1998] ).   Petitioner's refusal to answer any questions even when afforded use immunity subjected him to the penalty of dismissal (Matter of Matt v. Larocca, supra ).

 Notwithstanding petitioner's prior unblemished 10-year record, the penalty imposed does not shock our sense of fairness (see Matter of Kelly v. Safir, 96 N.Y.2d 32, 724 N.Y.S.2d 680, 747 N.E.2d 1280 [2001];  Matter of Pell v. Bd. of Educ., 34 N.Y.2d 222, 237, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ).   Petitioner's refusal to cooperate, even when afforded use immunity and informed that he was subject to dismissal for failing to cooperate, frustrated an investigation of serious charges of criminal activity implicating the integrity of respondent Fire Department.