Opinion
174
Decided December 17, 2002.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered June 3, 2002, which in a proceeding pursuant to CPLR article 78 (transferred to the Appellate Division by order of the Supreme Court, entered in Weatchester County), modified and, as modified, confirmed a determination of respondent to school district with adopted the recommendation of the Hearing Officer finding petitioner guilty of misconduct and terminating his employment as head custodian, otherwise dismissed the proceeding and remitted to respondents for the impostition of a new penalty. The modification consisted of granting the petition to the extent of annuling the determination with respect to two specifications, dismissing those specifications, vacating the penalty of termination, and reinstating petitioner.
Shaw Perelson, LLP, Poughkeepsie (Jay M. Siegel of counsel), for appellants.
James M. Rose, White Plains, for respondent.
Jay Worona and John A. Miller, Latham, for New York State School Boards Association, Inc., amicus curiae.
Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.
MEMORANDUM:
The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the school district's determination terminating petitioner reinstated.
The school district terminated petitioner as head custodian of a high school after it adopted the findings and penalty determination of the disciplinary hearing officer who found petitioner had engaged in misconduct, including a breach of trust when he removed and copied a document he found on the principal's desk. The Appellate Division concluded that the penalty of termination was disproportionate to the offense. Under the circumstances of this case, particularly in light of petitioner's statement that he "probably would" act in a similar manner if placed in the same situation, "we cannot conclude that the penalty of dismissal imposed * * * shocks the judicial conscience" (Matter of Kelly v. Safir, 96 N.Y.2d 32, 39-40; see also Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 233). Accordingly, it is unnecessary to address the school district's remaining argument.
On review of submissions pursuant to section 500.4 of the Rules, order, insofar as appealed from, reversed, with costs, and the School District's determination terminating petitioner reinstated, in a memorandum.