Jones v. McCarthy

¶1Motion to amend the record made, on the argument is granted and the report and recommendation of the hearing officer is made part of the record on appeal. The determination is confirmed insofar as it sustains certain charges. We find the dismissal with consequent loss of pay privileges and pension rights in the circumstances of this case was harsh and unwarranted and, therefore, must be considered an abuse of discretion. (Civ. Prac. Act, § 1296, subd. 5-a; Matter of Nagin v. Zurmuhlen, 6 A D 2d 677; Matter of Nimelman v. ICross, 5 A D 2d 984.) The determination is modified on the law and in the exercise of discretion to the extent of annulling the dismissal of the petitioner and the proceeding is remitted to the commissioner for the imposition of disciplinary measures consistent herewith. (Civil Service Law, § 22, subd. 2.) Concur — Breitel, J. P., Rabin, M. M. Frank, and McNally, JJ.