Opinion
June 29, 1998
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
The petitioner's argument that his due process rights were violated when, at the hearing, the Administrative Law Judge amended two of the specifications, is without merit ( see, Matter of Cerio v. New York City Tr. Auth., 228 A.D.2d 676; Matter of Ackerman v. Ambach, 73 N.Y.2d 323, 333). Pleadings may be amended to conform to the proof at any time, provided that no prejudice is shown (cf, CPLR 3025 [a]; Matter of Cerio v. New York City Tr. Auth., supra, at 676; Fitzpatrick v. American Honda Motor Co., 78 N.Y.2d 61, 69; see, Matter of Benson v. Board of Educ., 183 A.D.2d 996). The petitioner has failed to demonstrate any such prejudice ( see also, Matter of Block v. Ambach, 73 N.Y.2d 323).
The determination was supported by substantial evidence ( see, Matter of Giordani v. New York City Tr. Auth., 247 A.D.2d 384; Matter of Treadway v. New York City Tr. Auth., 235 A.D.2d 483; Matter of Cerio v. New York City Tr. Auth., supra).
"In view of the nature of the charge, the seriousness with which the [New York City] Police Department treats the occurrence of a 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'" ( Matter of Cerio v. New York City Tr. Auth., supra, at 677, quoting Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 233; see, Matter of O'Connor v. Kelly, 215 A.D.2d 173, 174). Great weight should be accorded the respondent's determination ( see, Matter of Cerio v. New York City Tr. Auth., supra, citing Matter of Ahsaf v. Nyquist, 37 N.Y.2d 182, 184).
The petitioner's remaining contentions are without merit.
Rosenblatt, J. P., Miller, Ritter and Goldstein, JJ., concur.