O'Garro v. Simpson

Proceeding pursuant to CPLR article 78 to review a determination of the New York City Transit Authority, dated October 4, 1982, which, after a hearing, found petitioner guilty of misconduct and/or incompetence and dismissed him from his position as a motorman. 11 Petition granted to the extent that the determination is modified, on the law, by adding thereto a provision that petitioner is entitled to back pay for the period beginning 30 days after his suspension to the date of his dismissal (excluding any delay attributable to him) and excluding any sums he may have earned from other employment during that period, or from unemployment compensation. (See Matter of Johnson v Board of Trustees, 61 NY2d 1014; Matter of Thompson v New York City Tr. Auth., 78 AD2d 543; Kearse v Fisher, 67 AD2d 963.) As so modified, determination confirmed and proceeding otherwise dismissed on the merits, without costs or disbursements, and matter remitted to respondent to determine the amount of back pay due to petitioner. H We find the record contains substantial evidence to support the charges against the petitioner, and as such, we must confirm the determination (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Tompkins v Board of Regents, 299 NY 469). In addition, the penalty imposed upon the petitioner is not so disproportionate to the offense as to be shocking to one’s sense of fairness, especially in light of a rather extensive history of prior disciplinary warnings (see Matter of Pell v Board of Educ., supra). The 908 petitioner has rights to back pay pursuant to subdivision 3 of section 75 of the Civil Service Law (see Matter of Johnson v Board of Trustees, supra; Matter of Sinicropi v Bennett, 60 NY2d 918). Accordingly the matter is remitted to respondent to determine the exact amount of money owed to him. Titone, J. P., Lazer, Mangano and Boyers, JJ., concur.