Summary
In Comins v. Camden Central School District, 214 AD2d 1032 (4th Dept), lv app den 86 NY2d 708 (1995), the penalty of dismissal of a school bus driver for misconduct and incompetence, based on an accident in which the driver failed to negotiate a curve on a snow-covered road and landed in a ditch, and no student passengers were seriously injured, was found to be too harsh in light of the driver's otherwise unblemished 13 ½ year record during which she received 13 safe driving awards.
Summary of this case from In re Middleton v. N.Y.C. D.O.E.Opinion
April 28, 1995
Appeal from the Supreme Court, Oneida County, Parker, J.
Present — Denman, P.J., Pine, Wesley, Balio and Davis, JJ.
Determination unanimously modified on the law and as modified confirmed without costs and matter remitted to respondent for further proceedings in accordance with the following Memorandum: Petitioner commenced this CPLR article 78 proceeding to review a determination of respondent finding petitioner guilty of four charges of misconduct and incompetency and terminating her employment as a school bus driver. The charges stemmed from an accident that occurred on December 7, 1992, when the school bus that petitioner was driving failed to negotiate a curve in the road and landed in a ditch. None of the student passengers was seriously injured. At the time of the accident, it was snowing and the road surface was slippery and snow-covered.
Petitioner contends that respondent's determination is not supported by substantial evidence. We disagree. Upon our review of the record, we conclude that there is substantial evidence that petitioner was guilty of misconduct and incompetence as charged (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 N.Y.2d 176; see also, Matter of Berenhaus v Ward, 70 N.Y.2d 436, 443).
We conclude, however, that the penalty of dismissal is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness (see, Matter of Pell v Board of Educ., 34 N.Y.2d 222, 233-234). "While we are not unmindful of the special obligation that school districts have with respect to safeguarding the well-being of their students" (Matter of Benson v Board of Educ., 209 A.D.2d 693, 694, appeal dismissed 85 N.Y.2d 847), in light of the otherwise unblemished 13 1/2-year record of petitioner with the District, during which she received 13 safe driving awards, the penalty of dismissal is too harsh (see, Matter of Harris v Mechanicville Cent. School Dist., 45 N.Y.2d 279, 285; Matter of Benson v Board of Educ., supra).
Therefore, we modify the determination by vacating the penalty imposed, and we remit the matter to respondent for the purpose of imposing an appropriate penalty, not to exceed a six-month suspension without pay, commencing July 20, 1993, which we conclude is the maximum penalty that the record will support.