IN RE: Application of Anthony LAGALA

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

IN RE: Application of Anthony LAGALA, Petitioner-Appellant, For Reinstatement, etc., v. The NEW YORK CITY POLICE DEPARTMENT, Respondent-Respondent.

Decided: August 02, 2001

WILLIAMS, J.P., TOM, MAZZARELLI, LERNER and RUBIN, JJ. Raymond E. Kerno, for Petitioner-Appellant. Julian L. Kalkstein, for Respondent-Respondent.

Judgment, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered February 3, 2000, which granted respondent's motion to dismiss petitioner's Article 78 proceeding seeking to vacate a determination of the Police Commissioner dated January 5, 1999, and to compel respondent to reinstate him to his position as a police officer, unanimously reversed, on the law, without costs, the motion to dismiss the petition denied, the petition reinstated and granted to the extent of remanding the matter to respondent for reconsideration of the sanction.

 It is well settled that an administrative sanction must be upheld unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law (Featherstone v. Franco, 95 N.Y.2d 550, 720 N.Y.S.2d 93, 742 N.E.2d 607;  Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321).   A sanction shocks the judicial conscience when it is so graven in its impact that it is disproportionate to the offense (Matter of Pell, supra, at 232 234, 356 N.Y.S.2d 833, 313 N.E.2d 321).   Here, petitioner was terminated from his position as a police officer for improperly issuing summonses for parking violations and for unauthorized use of a Department scooter.   Petitioner's sergeant testified that she never noticed deficiencies in the summonses petitioner wrote, nor did she speak to him regarding same, although she spoke to 30 or 40 other officers about their deficiencies.   Petitioner's performance evaluation for the year in question rated him between competent and highly competent.   Further, with regard to the improper use of the scooter, the record demonstrates that petitioner could not have taken the scooter without having obtained a supervisor's consent.   There is no evidence in the record that petitioner's misconduct involved dishonesty, venality or threat to public safety.   Therefore, we find that the sanction of dismissal was so disproportionate to these minor offenses as to shock “one's sense of fairness” (Matter of Pell, supra, at 233, 356 N.Y.S.2d 833, 313 N.E.2d 321 [cite omitted] ).