Opinion
September 22, 1997
Adjudged that the petition is granted to the extent that the penalty is annulled and is otherwise denied, without costs or disbursements, and the matter is remitted to the respondent for the imposition of a penalty not to exceed suspension for a period of two years.
The determination of the Administrative Law Judge to sustain, in part, specification I and specification II against the petitioner was supported by substantial evidence ( see, CPLR 7803; 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176). However, we find that under all the circumstances the penalty of dismissal was so disproportionate to the offenses committed as to be shocking to one's sense of fairness ( see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222), especially in light of the petitioner's prior satisfactory ratings by his immediate supervisor. Accordingly, the matter is remitted to the respondent Board of Education of the City of New York for the imposition of a penalty not to exceed the suspension of the petitioner from his position as a school custodian for a period of two years.
Joy, J.P., Goldstein, Florio and McGinity, JJ., concur.