We have great news for the membership regarding a major court case won by one of our members who, according to the Second Appellate Division of State Supreme Court, was unfairly fired by Division.
The basic facts of the case are as follows: New York State Police Sgt. Brian Kennedy was brought up on charges for alleged Division violations that were brought to a hearing in 2004. Following the hearing Kennedy was able to keep his job since the Division hearing board, comprised of Colonel Steven Cumoletti, Captain James Dewar, and Lieutenant Pat Regan, voted to limit his punishment to suspension and demotion.
However, Superintendent Wayne Bennett overruled his own commissioned officers on the hearing board, ignored their recommendations, and instead chose to fire Kennedy. At the time, Sgt. Kennedy had approximately 19 3/4 years on the job and was just a few months away from being eligible for his pension when he was fired.
The Appellate Division, which is just one level below the Court of Appeals, is the second-highest state court. The four Judges, who unanimously agreed in this 4-0 verdict, held that "…the penalty imposed by the respondent was so disproportionate to the offenses as to be shocking to one’s sense of fairness."
We have copied the entire decision (which was rather brief) of Kennedy v. Bennett below. Please read this decision so you are fully informed because this affects all PBA members in a positive way.
The PBA has stated for years that Division’s discipline system is harsh, unfair, biased and essentially a failure for justice. It appears that at least four, high-level judges agree with us as based on this case.
We will keep you posted as to the status of Sgt. Kennedy, his job, his back pay, and the PBA’s overall fight to reform Division’s terribly flawed discipline system in future postings.
Decided on February 7, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
HOWARD MILLER, J.P.
STEPHEN G. CRANE
PETER B. SKELOS
MARK C. DILLON, JJ.
DECISION & JUDGMENT
2004-08790[*1]In the Matter of Brian M. Kennedy, petitioner,
Wayne E. Bennett, etc., respondent. (Index No. 9639/04)
Rosenthal Curry & Kranz, LLP, East Meadow, N.Y. (Allen M.
Kranz of counsel), for petitioner.
Eliot Spitzer, Attorney-General, New York, N.Y. (Robert H.
Easton, Thomas B. Litsky, and Ann P.
Zybert of counsel), for respondent.
Proceeding pursuant to CPLR article 78 to review a determination of the respondent dated January 12, 2004, which, after a hearing, found the petitioner guilty of two of the three charges of misconduct filed against him and dismissed him from the New York State Police Department.
ADJUDGED that the petition is granted, on the law, without costs or disbursements, to the extent that the penalty is vacated, the petition is otherwise denied, the determination is otherwise confirmed, and the proceeding is otherwise dismissed on the merits, and the matter is remitted to the respondent for the imposition of a new penalty less severe than a dismissal.
The Hearing Officer’s finding of guilt as to two charges is supported by substantial evidence (see CPLR 7803). However, the penalty imposed by the respondent was so disproportionate to the offenses as to be shocking to one’s sense of fairness (see Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Lee v Board of Educ., 90 AD2d 775).
H. MILLER, J.P., CRANE, SKELOS and DILLON, JJ., concur.
James Edward Pelzer
Clerk of the Court