SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1434 

TP 11-01447 

PRESENT: SCUDDER, P.J., CENTRA, GREEN, GORSKI, AND MARTOCHE, JJ. 

 

IN THE MATTER OF JAMES T. HASTINGS, PETITIONER, 

V MEMORANDUM AND ORDER

CITY OF SHERRILL AND ROBERT A. COMIS, CITY 

MANAGER, RESPONDENTS. 

 

DONALD R. GERACE, UTICA, FOR PETITIONER.

SAUNDERS, KAHLER, L.L.P., UTICA (GREGORY J. AMOROSO OF COUNSEL), FOR

RESPONDENTS. 

 

Proceeding pursuant to CPLR article 78 (transferred to the

Appellate Division of the Supreme Court in the Fourth Judicial

Department by order of the Supreme Court, Oneida County [Bernadette T.

Clark, J.], entered July 11, 2011) to review a determination of

respondents. The determination terminated the employment of

petitioner. 

It is hereby ORDERED that the determination is unanimously

confirmed without costs and the petition is dismissed. 

Memorandum: Petitioner commenced this CPLR article 78 proceeding

seeking to annul the determination terminating his employment as

police chief for respondent City of Sherrill following a hearing

conducted pursuant to Civil Service Law § 75. Petitioner’s employment

was terminated based on, inter alia, his continued association with

“person(s) notoriously suspected of illegal activities,” specifically

his 29-year-old son, outside the performance of petitioner’s official

duties. Contrary to petitioner’s contention, the departmental

regulations that he was found to have violated did not impermissibly

interfere with his constitutionally protected right of intimate

association (see generally Roberts v United States Jaycees, 468 US

609, 617-619; Matter of Morrisette v Dilworth, 59 NY2d 449, 452). 

“[I]t is well established that it is within the State’s power to

regulate the conduct of its police officers even when that conduct

involves the exercise of a constitutionally protected right”

(Morrisette, 59 NY2d at 452), and we reject petitioner’s contention

that the departmental regulations at issue here are constitutionally

overbroad (see id. at 452-453). Moreover, the record supports the

conclusion that petitioner’s termination was not impermissibly based

solely on the existence of petitioner’s relationship with his son but

instead resulted from concern with regard to maintaining the integrity

of the police department (see Jenkins v Tyler, 167 F Supp 2d 652, 655;
-2- 1434 

TP 11-01447 

cf. Adler v Pataki, 185 F3d 35, 44-45). We further note that, in

light of the age of petitioner’s son and the absence of any evidence

that his son was mentally incapacitated, this case does not involve

the constitutionally protected interest in custodial relationships

between parents and their children (see generally Troxel v Granville,

530 US 57, 66; Pizzuto v County of Nassau, 240 F Supp 2d 203, 209-

211).

We conclude that petitioner’s contention that the charges were

insufficiently specific to put him on notice thereof “was the subject

of a separate unsuccessful CPLR article 78 proceeding and, as such, is

precluded by the doctrine of collateral estoppel” (Matter of Ruiz v

New York State Div. of Parole, 70 AD3d 1162, 1163; see generally Town

of Union v Pallet Co., 50 AD2d 628, 629, lv denied 38 NY2d 710). We

further conclude that the record contains substantial evidence to

support the determination with respect to all of the charges (see

generally Matter of Berenhaus v Ward, 70 NY2d 436, 443; 300 Gramatan

Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182). 

Finally, we have considered petitioner’s remaining contentions and

conclude that they are without merit, or are not properly before us

because they involve a second set of charges that were not the subject

of the determination before us. 

Entered: December 23, 2011 Frances E. Cafarell

Clerk of the Court