IN RE: Application of Anthony ZIRINO

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

IN RE: Application of Anthony ZIRINO, Petitioner, For a Judgment, etc., v. William J. DIAMOND, etc., et al., Respondents.

Decided: March 30, 1999

NARDELLI, J.P., LERNER, MAZZARELLI and SAXE, JJ. Raymond E. Kerno, for Petitioner. Steven J. Rappaport, for Respondents.

Determination of respondent New York City Housing Authority dated April 25, 1997, dismissing petitioner from his position as a maintenance worker, unanimously modified, on the facts, to vacate the penalty of dismissal and remand the matter to respondent for imposition of a lesser penalty, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Louis York, J.], entered January 23, 1998), is otherwise disposed of by confirming the remainder of the determination, without costs.

Respondent's finding that petitioner improperly solicited money from a tenant to do repair work in the tenant's apartment is supported by substantial evidence, including, in particular, the testimony of the tenant from whom petitioner solicited money.   We find no basis for disturbing respondent's credibility findings.   However, the penalty of dismissal of this 17-year employee with only two prior minor infractions is so disproportionate to the offense as to shock our sense of fairness, and we accordingly remand to respondent for imposition of a lesser penalty.

MEMORANDUM DECISION.