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In the Matter of McDermott v. Town Board

Appellate Division of the Supreme Court of New York, Second Department
Mar 14, 2005
16 A.D.3d 509 (N.Y. App. Div. 2005)

Opinion

01912.

March 14, 2005.

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Town Board of the Town of Patterson, dated July 9, 2003, which adopted the recommendation and findings of a hearing officer, finding the petitioner guilty of misconduct, and terminated his employment with the Town of Patterson Highway Department.

Before: Florio, J.P., H. Miller, Cozier and S. Miller, JJ., concur.


Adjudged that the petition is granted to the extent that so much of the determination as imposed a penalty is annulled, without costs or disbursements, the matter is remitted to the Town Board of the Town of Patterson to impose an appropriate penalty less severe than termination of the petitioner's employment, and the petition is otherwise denied, the proceeding is otherwise dismissed, and the determination is otherwise confirmed.

The determination that the petitioner was guilty of misconduct was supported by substantial evidence in the record ( see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d 176). However, under all of the circumstances, the penalty of dismissal was so disproportionate to the offense as to be shocking to one's sense of fairness ( see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale Mamaroneck, Westchester County, 34 NY2d 222; Matter of Rapkiewicz v. Middle Country School Dist., 273 AD2d 392, 393). Accordingly, we remit the matter to the Town Board of the Town of Patterson for the imposition of a penalty less severe than termination of the petitioner's employment.


Summaries of

In the Matter of McDermott v. Town Board

Appellate Division of the Supreme Court of New York, Second Department
Mar 14, 2005
16 A.D.3d 509 (N.Y. App. Div. 2005)
Case details for

In the Matter of McDermott v. Town Board

Case Details

Full title:In the Matter of MICHAEL P. McDERMOTT, Petitioner, v. TOWN BOARD OF THE…

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

Date published: Mar 14, 2005

Citations

16 A.D.3d 509 (N.Y. App. Div. 2005)
792 N.Y.S.2d 108

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