
    In the Matter of Anthony J. Hynes, Petitioner, v City of Buffalo Fire Department et al., Respondents.
    [779 NYS2d 696]
   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, Erie County [Patrick H. NeMoyer, J.], entered March 8, 2004) to review a determination of respondent City of Buffalo Fire Department. The determination found after a hearing that petitioner was guilty of misconduct.

It is hereby ordered that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to set aside the determination finding him guilty of conduct unbecoming a firefighter and the use of vulgar language and imposing a 10-day unpaid suspension. Contrary to petitioner’s contention, the determination is supported by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182 [1978]). Each of the three firefighters who filed complaints testified at the hearing that petitioner, a battalion chief, used a racial slur when referring to their ethnic group. Furthermore, the record indicates that at least one of the firefighters became visibly upset at its use. Also contrary to petitioner’s contention, the penalty imposed must be upheld where, as here, it does not “shock[ ] the judicial conscience” (Matter of Kelly v Safir, 96 NY2d 32, 40 [2001], rearg denied 96 NY2d 854 [2001]). Present—Pigott, Jr., P.J., Gorski, Martoche, Lawton and Hayes, JJ.  