IN RE: Thomas G. GILLEN

Reset A A Font size: Print

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

IN RE: Thomas G. GILLEN, Appellant, v. SMITHTOWN LIBRARY BOARD OF TRUSTEES, et al., Respondents.

Decided: October 26, 1998

Before O'BRIEN, J.P., JOY, FRIEDMANN and GOLDSTEIN, JJ. Hamburger, Maxson & Yaffe, L.L.P., Melville (Richard Hamburger, David N. Yaffe and David H. Pearl of counsel), for appellant. Perini & Hoerger, Hauppauge (Maureen S. Hoerger of counsel), for respondents.

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Smithtown Library Board Of Trustees, dated January 21, 1997, which terminated the petitioner from his position as Director of the Smithtown Library, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Underwood, J.), entered September 30, 1997, which confirmed the determination and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

 It is well settled that in a CPLR article 78 proceeding to review the determination of an administrative board, a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and capricious or constitutes an abuse of discretion (see, Matter of Pell v. Bd. of Educ., 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321).

 The determination of the respondent Smithtown Library Board of Trustees was based on several instances of misconduct by the petitioner in illegally promoting employees in contravention of the Civil Service Laws.   Thus, the penalty of termination, when considered in light of all of the circumstances of this case, was not so dispproportionate to the offense as to be shocking to one's sense of fairness (see, Matter of Pell v. Bd. of Educ., supra at 234, 356 N.Y.S.2d 833, 313 N.E.2d 321;  Matter of Soss v. Grant, 227 A.D.2d 494, 643 N.Y.S.2d 134).   Further, in this regard, a high degree of deference is to be accorded to an agency's determination of the appropriate penalty to be imposed (see, Matter of Washington v. Dolce, 208 A.D.2d 937, 617 N.Y.S.2d 533).

The petitioner's remaining contentions are without merit.

MEMORANDUM BY THE COURT.

Copied to clipboard