Small v. Human Resources Administration

Determination of respondent Human Resources Administration, dated June 11, 2001, suspending petitioner without pay for 40 days from her position as a Supervisor I in respondent’s Conciliation Unit of the Rider Income Maintenance Center, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Barbara Kapnick, J.], entered August 31, 2001), dismissed, without costs. The findings that petitioner berated and attempted to physi- 239 cally provoke respondent’s clients, and ignored her supervisor’s direct instructions to stop such conduct, is supported by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180-181), including the testimony of four coemployees (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444). We also conclude that a negative inference was properly drawn against petitioner because of her failure to testify (see Farrell v Labarbera, 181 AD2d 715, 716). The penalty imposed does not shock our sense of fairness (see Matter of Pell v Board of Educ., 34 NY2d 222, 233). Concur— Tom, J.P., Andrias, Saxe, Rubin and Friedman, JJ.