Opinion
March 30, 1998
Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
Inasmuch as the petitioner was charged, inter alia, with misconduct and incompetence due to excessive absenteeism, Civil Service Law § 75 provided the appropriate statutory vehicle for the resolution of the instant controversy ( see, Matter of Alston v. Morgan, 245 A.D.2d 287; Matter of Abdalla v. Fulton County, 208 A.D.2d 1168). While the petitioner contends that her case should have been governed by the provisions of Civil Service Law § 72 and 73 because her absenteeism was due to her physical incapacity, even charges of nonwillful absenteeism may be adjudicated in a proceeding pursuant to Civil Service Law § 75 ( see, Matter of Romano v. Town Bd., 200 A.D.2d 934; see also, Matter of Moorehead v. New York City Tr. Auth., 190 A.D.2d 674). Upon our review of the record, we conclude that the finding of misconduct is supported by substantial evidence ( see, Matter of James v. Carter, 209 A.D.2d 522).
The penalty of dismissal is not so disproportionate to the offense as to shock one's sense of fairness ( see, Matter of Alston v. Morgan, supra; Matter of James v. Carter, supra; Matter of Moorehead v. New York City Tr. Auth., supra).
Mangano, P. J., Miller, Ritter and Thompson, JJ., concur.