Meehan v. Schembri

—Order and judgment (one paper), Supreme Court, New York County (Stanley Parness, J.), entered March 27, 1997, which, upon the report and recommendation of a Judicial Hearing Officer, denied petitioner’s application pursuant to CPLR article 78 to annul respondents’ determination demoting petitioner from a Level III Warden position to a Level I Assistant Deputy Warden position, unanimously modified, on the law, the facts and in the exercise of discretion, to grant the petition to the extent of vacating the penalty imposed and remanding the matter to respondents for reconsideration of the appropriate penalty to impose, and otherwise affirmed, without costs.

We agree with the IAS Court that petitioner failed to establish that the real reason he was demoted was in retaliation for his union activities and his filing of a discrimination complaint. Respondents presented evidence, credited after a CPLR 7804 (h) hearing, that petitioner questioned respondents’ policy concerning hospital visits to wounded correction officers and reacted with aggressive defiance to a superior’s attempt to “correct” his relúctance, failed to follow the protocol of saluting a superior officer on at least two occasions and was evaluated by respondents’ psychologist as having a questionable ability to follow authority.

However, we find petitioner’s demotion from a relatively high managerial position to a nonmanagerial position is so disproportionate to his conduct as to shock one’s sense of fairness. Concur — Milonas, J. P., Wallach, Rubin, Mazzarelli and Saxe, JJ.