Capozzi v. New York City Transit Authority

— Proceeding pursuant to CPLR article 78 to review a determination of the respondent New York City Transit Authority, dated April 19, 1989, which, after a hearing, found the petitioner, Andrew Capozzi, guilty of using excessive force in the performance of his duties and imposed a suspension of 25 days without pay. Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs. Contrary to the petitioner’s argument, there is substantial evidence in the record to support the respondent New York City Transit Authority’s determination that the petitioner used excessive force in performing his duties on April 1, 1987, by striking an individual in his custody on the head with a police radio (see, Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Collins v Codd, 38 NY2d 269; Matter of Moorehead v New York City Tr. Auth., 147 AD2d 569). In addition, the penalty imposed was not so disproportionate to the offense as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., supra, at 223; Matter of Scorpio Car Serv. v New York City Taxi & Limousine Commn., 171 AD2d 872; Matter of Hickey v Ward, 161 AD2d 495). We have examined the petitioner’s remaining arguments and find them to be without merit (Matter of Choe v Axelrod, 141 AD2d 235, 239; see, Sitaras v Ricciardi & Sons, 154 AD2d 451, 452). Mangano, P. J., Hooper, Rosenblatt and O’Brien, JJ., concur.