MARCOTTE, PAMELA v. HOLAHAN, PAUL

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department [1132] TP 13-00486 PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ. IN THE MATTER OF PAMELA MARCOTTE, PETITIONER, V MEMORANDUM AND ORDER PAUL HOLAHAN, COMMISSIONER OF ENVIRONMENTAL SERVICES AND CITY OF ROCHESTER, RESPONDENTS. CHAMBERLAIN D’AMANDA OPPENHEIMER & GREENFIELD LLP, ROCHESTER (MATTHEW J. FUSCO OF COUNSEL), FOR PETITIONER. ROBERT J. BERGIN, CORPORATION COUNSEL, ROCHESTER (YVETTE CHANCELLOR GREEN OF COUNSEL), FOR RESPONDENTS. 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 March 18, 2013) to annul a determination finding petitioner guilty of specified acts of misconduct and imposing a penalty of demotion. It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed. Memorandum: Petitioner, an employee of respondent City of Rochester, commenced this CPLR article 78 proceeding seeking to annul the determination finding her guilty of specified acts of misconduct and imposing a penalty of demotion. Contrary to petitioner’s contention, the determination is supported by substantial evidence, i.e., “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 ). Additionally, we conclude that the penalty of demotion “is not so disproportionate to the offense[s] as to be shocking to one’s sense of fairness, and thus does not constitute an abuse of discretion as a matter of law” (Matter of Szczepaniak v City of Rochester, 101 AD3d 1620, 1621 [internal quotation marks omitted]). Entered: November 8, 2013 Frances E. Cafarell Clerk of the Court