IN RE: John MONAHAN

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

IN RE: John MONAHAN, Petitioner, v. John J. DOHERTY, as Commissioner, New York City Department of Sanitation, Respondent.

Decided: November 21, 2006

TOM, J.P., ANDRIAS, SAXE, GONZALEZ, SWEENY, JJ. Agulnick & Gogel, LLC, New York (William A. Gogel of counsel), for petitioner. Michael A. Cardozo, Corporation Counsel, New York (Drake A. Colley of counsel), for respondent.

Determination of respondent, dated November 16, 2004, which found petitioner guilty of specified misconduct and dismissed him from service, unanimously confirmed, the petition denied and the article 78 proceeding (transferred to this Court by order of the Supreme Court, New York County [Nicholas Figueroa, J.], entered August 3, 2005) dismissed, without costs.

The determination was supported by substantial evidence (Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444, 522 N.Y.S.2d 478, 517 N.E.2d 193 [1987];  see also People ex rel. Vega v. Smith, 66 N.Y.2d 130, 495 N.Y.S.2d 332, 485 N.E.2d 997 [1985] ) that petitioner was guilty of misconduct when he negligently operated a department truck, violated sick leave and lateness regulations, and was insubordinate to a supervisor (see Matter of Wallace v. Department of Sanitation of City of N.Y., 303 A.D.2d 295, 756 N.Y.S.2d 571 [2003] ).   The Administrative Law Judge properly rejected petitioner's various excuses and explanations.   The penalty of dismissal was not disproportionate to the offenses and does not shock the conscience (see Matter of Kelly v. Safir, 96 N.Y.2d 32, 39-40, 724 N.Y.S.2d 680, 747 N.E.2d 1280 [2001] ), particularly in view of petitioner's disciplinary record, which included several prior suspensions (see Matter of Cantres v. New York City Health & Hosps. Corp., 30 A.D.3d 164, 816 N.Y.S.2d 57 [2006] ).

We have considered and rejected petitioner's remaining arguments.