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.