IN RE: Application of John RODRIGUEZ

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

IN RE: Application of John RODRIGUEZ, Petitioner, For a Judgment, etc., v. Ruben FRANCO, as Chair of the New York City Housing Authority, Respondent.

Decided: February 25, 1999

SULLIVAN, J.P., NARDELLI, WALLACH and TOM, JJ. Elissa Hutner, for Petitioner. Byron S. Menegakis, for Respondent.

Determination of respondent Housing Authority dated June 3, 1996, terminating petitioner's employment, 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 [Carol Arber, J.], entered April 9, 1997), dismissed, without costs.

 Deferring to the Trial Officer's credibility determinations, substantial evidence supports the findings that petitioner falsely claimed and secured overtime pay through the filing of false or misleading overtime records, including overtime pay for time spent commuting.   The latter finding is not undermined by the finding that petitioner was authorized to clock in and out at a place other than his work site, or by the Fair Labor Standards Act.   The penalty of dismissal does not shock our sense of fairness given what was systematic dishonesty, misrepresentation and falsification of records.


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