IN RE: Application of Thomas McDERMOTT

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

IN RE: Application of Thomas McDERMOTT, Petitioner, For a Judgment, etc., v. CITY OF NEW YORK, et al., Respondents.

Decided: May 26, 1998

Before MILONAS, J.P., and NARDELLI, MAZZARELLI and ANDRIAS, JJ. Donald E. Cameron, for Petitioner. Michael D. Hess, for Respondents.

Determination of respondent Commissioner of the New York City Department of Correction, dated August 19, 1996, finding petitioner guilty of various charges and specifications, and dismissing him from his employment with the Department, 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 [William McCooe, J.], entered March 5, 1997), dismissed, without costs.

 Substantial evidence supports the finding of respondent that petitioner was absent without leave during several days in March 1994 and again from January 1995 until the date of the administrative hearing in 1996 (see, Pell v. Board of Education, 34 N.Y.2d 222, 230, 356 N.Y.S.2d 833, 313 N.E.2d 321).  The record further supports the hearing officer's finding, after assessing testimony from various witnesses, including petitioner and his family members, that petitioner was guilty of multiple instances of failure to obey lawful orders of his superiors, and of a pattern of harassment of a superior officer and that officer's family.   We find no basis to disturb the determinations of credibility made by the trier of fact (see, Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443, 522 N.Y.S.2d 478, 517 N.E.2d 193).

 Under the circumstances, the penalty imposed is not so disproportionate to the proven offenses as to shock our sense of fairness (see, Matter of Trotta v. Ward, 77 N.Y.2d 827, 828, 566 N.Y.S.2d 199, 567 N.E.2d 241;  Matter of Alfieri v. Murphy, 38 N.Y.2d 976, 977, 384 N.Y.S.2d 157, 348 N.E.2d 614).