Dougherty v. Degenhart

—Determination unanimously confirmed and petition dismissed without costs. Memorandum: In this CPLR article 78 proceeding, petitioner seeks to set aside the determination made by respondent pursuant to section 75 of the Civil Service Law terminating petitioner’s employment by the Buffalo Police Department. Initially, we note that Special Term improperly transferred this proceeding to this court where no "substantial evidence” issue was raised by petitioner (see, CPLR 7804 [g]; Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 131 AD2d 171, 174). Even though the proceeding was improperly transferred to us, we will nonetheless determine the issues pre 899 sented (see, e.g., Matter of Gernatt Gravel Prods, v Town of Collins, 105 AD2d 1057, 1058). The Commissioner properly initiated this disciplinary proceeding against petitioner pursuant to section 75 rather than under sections 72 and 73 of the Civil Service Law (see, e.g., Matter of Turner v Simpson, 60 NY2d 959). The penalty imposed was not " 'so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness’ ” (Matter of Pell v Board of Educ., 34 NY2d 222, 233) in view of respondent’s findings of misconduct and petitioner’s lengthy disciplinary record. Petitioner’s claim, raised for the first time on appeal, that he is entitled to a disability leave pursuant to the terms of the collective bargaining agreement between the City of Buffalo and the Police Benevolent Association is not properly before us (see, Tumolillo v Tumolillo, 51 NY2d 790; Arvantides v Arvantides, 106 AD2d 853, mod 64 NY2d 1033). Were we to address the issue, we would find it lacking in merit because section 75 of the Civil Service Law authorizes the dismissal of a public employee for misconduct. (Article 78 proceeding transferred by order of Supreme Court, Erie County, Joslin, J.) Present — Dillon, P. J., Denman, Boomer, Green and Davis, JJ.