Appellate Division of the Supreme Court of New York, 1996

Cerio v. New York City Transit Authority

Appellate Division of the Supreme Court of New York · Decided June 24, 1996

228 A.D.2d 676; 645 N.Y.2d 822; 645 N.Y.S.2d 822; 1996 N.Y. App. Div. LEXIS 7399

Cases that cite this one

8 later published cases cite this decision.

Miles v. City of New York (Appellate Division of the Supreme Court of New York 1998)
D & D Mason Contractors, Inc. v. Smith (Appellate Division of the Supreme Court of New York 2011)
Kiselgof v. New York State Division of Housing & Community Renewal (Appellate Division of the Supreme Court of New York 2005)
Plazinska v. New York State Division of Housing & Community Renewal (Appellate Division of the Supreme Court of New York 2005)
Pronina v. New York State Division of Housing & Community Renewal (Appellate Division of the Supreme Court of New York 2005)
Vaynshteyn v. New York State Division of Housing & Community Renewal (Appellate Division of the Supreme Court of New York 2005)
Treadway v. New York City Transit Authority (Appellate Division of the Supreme Court of New York 1997)
Gatto v. Brown (Appellate Division of the Supreme Court of New York 1996)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

The petitioner’s argument that his due process rights were violated when, at the hearing, the Administrative Law Judge amended specification three of the charges, is without merit (see, Matter of Ackerman v Ambach, 73 NY2d 323, 333). Pleadings may be amended to conform to the proof at any time, "provided that no prejudice is shown (see, CPLR 3025 [a])” (Fitzpatrick v American Honda Motor Co., 78 NY2d 61, 69). The petitioner has failed to demonstrate any such prejudice (see also, Matter of Block v Ambach, 73 NY2d 323).

Furthermore, the determination was supported by substantial evidence, including the petitioner’s own admission, at the hearing, that he did not report the discharge of his weapon during the approximately eight hours following the incident while he was in the precinct. The petitioner only came forward *677with information about the incident when confronted by the desk sergeant, as the petitioner was on his way out the door (see, Matter of Moorehead v New York City Tr. Auth., 190 AD2d 674).

In view of the nature of the charge, the seriousness with which the Transit Authority Police Department treats the occurrence of the discharge of an officer’s weapon, and the petitioner’s poor disciplinary record, termination is not "so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness” (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233). Great weight should be accorded the respondent’s determination (see, Matter of Ahsaf v Nyquist, 37 NY2d 182, 184).

The petitioner’s remaining contention is without merit. Sullivan, J. P., Santucci, Joy and Hart, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.