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Ross v. Oxford Academy & Central School District

Appellate Division of the Supreme Court of New York, Third Department
Nov 25, 1992
187 A.D.2d 898 (N.Y. App. Div. 1992)

Summary

In Ross v. Oxford Academy Central School District, 187 AD2d 898 (3rd Dept 1992), lv app den 81 NY2d 705 (1993), the court found the penalty of dismissal disproportionate to the offense of using physical force on four students, given the driver's 15-year record and his most recent evaluation that he used good judgment in his work, and displayed enthusiasm and responsibility for the students, and the uncontradicted evidence of the difficult nature of the children involved.

Summary of this case from In re Middleton v. N.Y.C. D.O.E.

Opinion

November 25, 1992

Appeal from the Supreme Court, Chenango County.


Respondent found petitioner guilty of, inter alia, using physical force on four students assigned to the bus he was driving in violation of 8 NYCRR 19.5 and 100.2 (l) (3) as well as respondent's policies. Upon our review of the record, we find this determination to be supported by substantial evidence. In this regard, we note that although there was conflicting testimony, it was for respondent to assess matters of credibility (see, Matter of Ronkese v Board of Educ., 82 A.D.2d 1011). As to the penalty, however, the evidence revealed that petitioner had been driving for respondent for 15 years and his most recent evaluation revealed that he used good judgment in his work and that he displayed continued enthusiasm and responsibility for the students. Given that and the uncontradicted evidence of the difficult nature of the children involved in the instant proceeding, we believe that the penalty of dismissal is so disproportionate to the offense as to be shocking to one's sense of fairness (see, Matter of Borkhuis v Quinn, 158 A.D.2d 917). Accordingly, the matter should be remitted to respondent for imposition of an appropriate sanction.

Mikoll, J.P., Mahoney, Casey and Harvey, JJ., concur. Adjudged that the determination is modified, without costs, by annulling the penalty imposed; matter remitted to respondent for further proceedings not inconsistent with this Court's decision; and, as so modified, confirmed.


Summaries of

Ross v. Oxford Academy & Central School District

Appellate Division of the Supreme Court of New York, Third Department
Nov 25, 1992
187 A.D.2d 898 (N.Y. App. Div. 1992)

In Ross v. Oxford Academy Central School District, 187 AD2d 898 (3rd Dept 1992), lv app den 81 NY2d 705 (1993), the court found the penalty of dismissal disproportionate to the offense of using physical force on four students, given the driver's 15-year record and his most recent evaluation that he used good judgment in his work, and displayed enthusiasm and responsibility for the students, and the uncontradicted evidence of the difficult nature of the children involved.

Summary of this case from In re Middleton v. N.Y.C. D.O.E.
Case details for

Ross v. Oxford Academy & Central School District

Case Details

Full title:In the Matter of GERALD ROSS, Petitioner, v. OXFORD ACADEMY AND CENTRAL…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Nov 25, 1992

Citations

187 A.D.2d 898 (N.Y. App. Div. 1992)
590 N.Y.S.2d 307

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