IN RE: MARK A. LICCIARDI

Reset A A Font size: Print

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

IN RE: MARK A. LICCIARDI, PETITIONER, v. CITY OF ROCHESTER, RESPONDENT.

TP 11–00777

Decided: September 30, 2011

PRESENT:  SCUDDER, P.J., LINDLEY, SCONIERS, AND GORSKI, JJ. TREVETT CRISTO SALZER & ANDOLINA, P.C., ROCHESTER (LAWRENCE J. ANDOLINA OF COUNSEL), FOR PETITIONER. JEFFREY EICHNER, ACTING CORPORATION COUNSEL, ROCHESTER (IGOR SHUKOFF OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Monroe County [Evelyn Frazee, J.], entered November 9, 2010) to review a determination of respondent.   The determination terminated the employment of petitioner as a firefighter.

It is hereby ORDERED that the determination so appealed from is unanimously modified on the law by granting the petition in part and annulling those parts of the determination finding that petitioner is guilty of specification 2 of Charge 1, Charges 2 and 3, specification 1 of Charge 4 and Charge 7, and as modified the determination is confirmed without costs, and the matter is remitted to respondent for new findings with respect to Charge 7 and reconsideration of the penalty imposed.

Memorandum:  Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, to annul the determination terminating his employment as a firefighter for respondent.   We agree with petitioner that several of the findings of misconduct rendered following a hearing are not supported by substantial evidence (see generally Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 230–231).   Four of the charges of misconduct involved petitioner's part-time outside employment while on sick leave from his employment as a firefighter.   The record of the hearing, however, contains no “relevant proof as a reasonable mind may accept as adequate to support [the] conclusion” that working an additional part-time job while employed by respondent's Fire Department (Department) was not permitted or that the part-time job itself was improper or illegal (300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180).   Thus, the determination that petitioner's conduct violated the Department's rule that members must at all times “ ‘conduct themselves to the credit of the Department,’ “ as alleged in specification 2 of Charge 1, and the rule that a firefighter shall “ ‘not conduct himself [or herself] in a manner unbecoming[ ] or prejudicial to the good reputation, the order, or discipline of the ․ Department,’ “ as alleged in specification 1 of Charge 4, are not supported by substantial evidence.   We therefore modify the determination accordingly.

Patricia L. Morgan

Clerk of the Court