Opinion
2011-05-3
In re Beverly RILEY, Petitioner–Respondent, v. THE CITY OF NEW YORK, et al., Respondents–Appellants.
Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for appellants. Glass Krakower LLP, New York (Bryan D. Glass of counsel), for respondent.
Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for appellants. Glass Krakower LLP, New York (Bryan D. Glass of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Saliann Scarpulla, J.), entered September 20, 2010, which, inter alia, denied respondents' motion to deny and dismiss the petition to vacate the termination of petitioner's employment with respondent Department of Education and remand for a lesser penalty, and remanded the matter for a new penalty determination, unanimously affirmed, without costs.
We find the penalty so disproportionate as to be shocking to our sense of fairness ( see Lackow v Department of Educ. [or “Board”] of City of N.Y., 51 A.D.3d 563, 569, 859 N.Y.S.2d 52 [2008] ). The student admitted that she sustained no physical or emotional injury as a result of the incident, and in the 15 years preceding the incident, petitioner had received not a single formal reproach ( compare Matter of Weinstein v. Department of Educ. of City of N.Y., 19 A.D.3d 165, 798 N.Y.S.2d 383 [2005],lv. denied6 N.Y.3d 706, 812 N.Y.S.2d 35, 845 N.E.2d 467 [2006],Matter of Solis v. Department of Educ. of City of N.Y., 30 A.D.3d 532, 817 N.Y.S.2d 901 [2006], and Gabriel v. New York City Dept. of Educ., 2009 N.Y. Slip Op. 32249[U], 2009 WL 3240370 [2009],with Matter of Ebner v. Board of Educ. of E. Williston Union Free School Dist. No. 2, N. Hempstead, 42 N.Y.2d 938, 397 N.Y.S.2d 1008, 366 N.E.2d 1362 [1977] ).