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Court annuls penalty imposed after finding appointing authority failed to investigate before taking disciplinary action against individual
Matter of Titone v Rocky Point Fire Dept., 2010 NY Slip Op 33037(U), October 25, 2010, Supreme Court, Suffolk County, Judge Jeffrey Arlen Spinner [Not selected for publication in the Official Reports]

Joseph A Titone filed a petition ?in the nature of mandamus? pursuant to Article 78 of the CPLR challenging his suspension from his position as Captain of Company One of the Rocky Point Volunteer Fire Department and asked the court to direct the Board of Commissioners of the Fire Department to annul its action and to expunge the suspension from his record.

The genesis of Titone?s suspension was a letter he wrote to John Celentano, Chief of Rocky Point Fire Department, in which Titone indicated that a department rescue boat was out of service for ?work that should have been performed off season? and a Company One fire truck was allowed to remain in service without operational mechanical or electrical sirens.

Celentano summarily suspended Titone from the Department without notice or hearing, for ?for improper conduct.? Twenty-seven days later the Chair of the Board of Fire Commissioners reinstated Titone to active duty as Captain of Company One, but warned him that any further ?infractions would result in his dismissal from the Department.?

Titone contending that the Chair?s letter failed to specify the reason for his suspension; failed to state any final determination regarding the suspension; failed to indicate what conduct would be considered ?a further infraction;? and failed to address the effects of the suspension, such as possibly preventing him from seeking any Department elective office for the following three years, sued.

Judge Spinner granted Titone?s petition ?in all respects,? and denied the Department?s application seeking dismissal of his complaint ?in all respects?.

Indicating that it is ?indisputable that the standard of review for determinations of Board of Fire Commissioners and Celentano is whether the decision rendered is arbitrary, capricious and, or, unlawful, Judge Spinner said that ?Nowhere do Respondents demonstrate that they made any inquiry whatsoever into the facts before rendering their decision to suspend [Titone], making their actions indisputably arbitrary and capricious.?

The court noted that, as Titone?s Counsel ?adeptly points out that, rather than investigating the fact that rescue equipment was in need of repair, they rushed to punish [Titone] for abiding by his oath to protect and serve the public.? The opinion then states: ?This Court is most perplexed by how legitimate concern for the safety of the firefighters volunteering to respond to emergencies and the taxpayers the Respondents serve comes to be characterized as defamation.?

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_33037.pdf
NYPPL

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