2012 Conference Executive Record Report.pdf - YMCA of Greater ...

Team 2 v 20
MARK RUTKOWSKI, Appellant, v.
THE YMCA, Respondent.
Supreme Court, Appellate Division, First
Department, New York
March 10, 2012, Argued
March 10, 2012, Decided
COUNSEL: Dan Liesner and Evan
Prentice, for Appellant.
Ashley Hampson and Brian
Shiminski, for Respondent.
JUDGES: Dewitt, Domagola, Parakkatu,
Blaszczyk, Furia
OPINION BY: Last
OPINION
We the Appellate Court of the State of New
find in favor of the appellant, Rutkowski.
The appellant successfully proved that
Rutkowski's termination and loss of pension
were too severe. The appellant adequately
proved that Rutkowski’s actions did not
constitute as moral turpitude.
The crucial issue of this case was that
Rutkowski's punishment of termination from
his job was disproportionate to the offense.
The appellant compared the case at bar to
Muraik v. Landi, in which the appellant had
a 29 year career with only one incident prior
to the act of fraud. Similarly, Rutkowski
was a model employee with many years of
good service and only one prior offense.
Though both employees committed fraud,
the appellant argued that Rutkowski acted
without "malice or selfishness." Rutkowski's
actions were most certainly motivated by a
desire to serve the students of the Youth and
Government program, who were not able to
pay for the conference.
The appellant in our case also successfully
compared the records of these men, arguing
that Rutkowski's service overrode his fraud.
In the case of Romano v. Town Board of
Town of Colonie, the petitioner had received
several warnings about his excessive
absenteeism. Appellant demonstrated that
Rutkowski had received no warning prior to
his termination and that this termination was
erroneous and thusly, merited a new trial.
The appellant also used Alston v. Morgan to
counter that Rutkowski's absences were not
excessive and took place over a shorter
time-span.
The second most crucial issue was that of
the petitioner's pension. The petitioner
defined a pension as an award for good
service. In the case of Goudy v. Schaffer,
the petitioner was terminated after 42 counts
of incompetence and misconduct, yet his
pension was restored after they determined it
was too severe a punishment. Similar to
Rutkowski's case, Goudy had to provide for
his family. The appellant in our case did not
excuse Rutkowski's act of fraud, and
recognized that Rutkowski inappropriately
redirection $20,0000. The petitioners
argued that Rutkowski's prior service earned
him the right to keep his pension, and
encouraged that his only punishment be
repaying the money that he had taken for the
Youth and Government program. He
compared Rutkowski's right to maintain his
pension to Muraik v. Landi, where it was
determined that due to his years of good
service, and that because Mark had a family
support, he deserved his pension.
We believe that the decision of the lower
court should be overturned and that
Rutkowski receives both his job and pension
with the $20,000 he embezzled, deducted
from his pension.
47