Barragato v. Mayer

Proceeding pursuant to CPLR article 78 to review a determination of the respondent board of fire commissioners, dated March 25, 1975, which, after a hearing, found petitioner guilty of misconduct and dismissed him from further service in the Elmont Fire Department. Determination annulled, on the law, and charges dismissed, without costs. Petitioner was charged with misconduct as a result of his having issued an order to his men to keep their hands off the fire truck, as a result of which they thereupon ceased their practice of periodic oil checks, causing an insufficiency of oil in the truck’s engine, thus rendering it inoperable. At a hearing held before the board, testimony was adduced that a fire commissioner had originally told petitioner and the men of his company not to touch the truck, that such statement had been repeated by petitioner to his men, and that a number of them believed that his order encompassed oil checks. However, the record does not contain evidence that petitioner ever explicitly told his men not to check the oil. Upon this record, the determination upon which petitioner’s dismissal is based was unsupported by evidence warranting a finding that he had been guilty of misconduct. Rabin, Acting P. J., Latham, Cohalan, Margett and Christ, JJ., concur.