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May 05, 2011

Discipline penalties

Discipline penalties
Nicastro v Safir, App. Div., First Dept, 266 AD2d 167
Queally v Safir, App. Div., First Dept, 266 AD2d 167
Dillon v Safir, App. Div., First Dept., 265 AD2d 196

Penalties imposed following disciplinary action taken pursuant to Section 75 of the Civil Service Law are frequently challenged by appealing either to the civil service commission having jurisdiction or to the courts pursuant to an Article 78 proceeding [Article 78, Civil Practice Law and Rules].

Although the penalty of dismissal is the one most frequently appealed, lesser penalties are also subject to challenge as the Nicastro, Queally and Dillon cases demonstrate.

In Nicastro case, New York City police officer Ann Nicastro challenged her being found guilty of having been discourteous to individuals in the course of effecting an arrest.

The penalty imposed: the loss of 15 days of vacation time. The Appellate Division sustained both the disciplinary determination and the penalty imposed.

In Queally, decided with Nicastro, the court affirmed the imposition of the penalty of the loss of 10 days of vacation time after New York City police officer Robert Queally was found guilty of using excessive force to effect an arrest.

The Appellate Division referred to Pell v Board of Education, 34 NY2d 222, in support of these rulings.

A similar penalty, 10 days suspension without pay, was imposed on a New York City police officer found guilty of directing ethnically offensive epithets to a garage attendant while off-duty [Police Department v Murray, OATH #111/00, 11/26/99].

The third case, Dillon v Safir, also involved allegations of the use of excessive force.*

Here New York City police officer Bradley Dillon contested his being guilty of using excessive force in effecting an arrest and the penalty imposed: “dismissal probation for one year” and the forfeiture of 30 days of annual leave credit.

The Appellate Division dismissed his petition, holding that the disciplinary determination was supported by the records and that the penalty imposed by the Commissioner was reasonable under the circumstances.

* Dillon was subsequently terminated during his disciplinary probationary period [see 270 AD2d 116 – Here the Appellate Division upheld Dillon’s termination without a hearing and without a statement of reasons while he was serving a one-year disciplinary probation imposed pursuant to Administrative Code of the City of New York § 14-115 (d). This penalty was the one affirmed by 265 AD2d 196, above.

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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