Chisolm v. Copeland

In a proceeding pursuant to CPLR article 78 to review a determination of the City Clerk of the City of Mount Vernon dated March 23, 2004, which adopted the recommendation of a hearing officer, made after a hearing, finding the petitioner guilty of insubordination, incompetence, and neglect of duty, and 576 terminated his employment, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Tolbert, J.), entered January 5, 2005, which denied the petition and dismissed the proceeding. Ordered that the judgment is affirmed, with costs. The Commissioner of Management Services (hereinafter the Commissioner) properly disqualified himself from reviewing the recommendation of the hearing officer and acting on any of the charges because of his personal involvement with the case (see Matter of DiMattina v LaBua, 262 AD2d 409, 410 [1999]; Matter of Pryor v O’Donnell, 262 AD2d 648, 648-649 [1999]; Matter of Brundage v Yonkers Parking Auth., 220 AD2d 411 [1995]; Matter of Lowy v Carter, 210 AD2d 408, 409 [1994]). Under the circumstances presented, the Commissioner properly appointed an impartial third party—the City Clerk of the City of Mount Vernon—to review the determination of the hearing officer and render a final determination (see Mount Vernon City Charter §§ 68-a, 68-b [9]; Matter of General Motors Corp.—Delco Prods. Div. v Rosa, 82 NY2d 183, 189 [1993]; Matter of Correia v Incorporated Vil. of Northport, 12 AD3d 599 [2004]). Krausman, J.P., Luciano, Fisher and Dillon, JJ., concur.