Matter of Darryl Henderson v City of New York

Matter of Henderson v City of New York 2004 NY Slip Op 07918 [12 AD3d 159] November 4, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

In the Matter of Darryl Henderson, Petitioner,
v
City of New York et al., Respondents.

—[*1]

Determination of respondent New York City Department of Health, dated October 31, 2002, dismissing petitioner from his position as a Department of Health employee, 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 [William A. Wetzel, J.], entered August 22, 2003) dismissed, without costs.

Petitioner does not dispute that there was substantial evidence to support respondent's findings that on the specified occasion he was verbally abusive and acted in a threatening manner toward his supervisor, but contends that the misconduct did not warrant the penalty of dismissal. Petitioner's dismissal, however, is not under the circumstances shocking to our sense of fairness, particularly in light of his prior disciplinary record, which included a suspension for similarly abusive behavior and a warning that any future such conduct would result in disciplinary proceedings. Accordingly, the penalty may not be disturbed (see Matter of Turner v Simpson, 60 NY2d 959, 961-962 [1983]). Concur—Nardelli, J.P., Andrias, Sullivan, Williams and Friedman, JJ.