No. 198 SSM 30.
Decided September 9, 2008.
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 March 4, 2008, in a proceeding pursuant to CPLR article 78 (transferred to the Appellate Division by order of the Supreme Court, entered in Westchester County). The Appellate Division order, insofar as appealed from, (1) granted the petition, on the law and in the exercise of discretion, to review a determination of respondent Commissioner of the Westchester County Department of Social Services, which had adopted the hearing officer's finding and recommendation, made after a hearing, finding petitioner guilty of acts of incompetence and terminating her employment as an eligibility examiner II, to the extent of annulling the penalty and reinstating petitioner to her position with back pay and benefits, and (2) remitted the matter to respondents for the imposition of an appropriate penalty less severe than either termination or suspension of petitioner's employment. Matter of Ellis v Mahon, 49 AD3d 538, reversed.
Charlene M. Indelicato, County Attorney, White Plains ( Thomas G. Gardiner of counsel), for appellants.
Lovett Gould, LLP, White Plains ( Jane Bilus Gould of counsel), for respondent.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the petition dismissed in its entirety.
Petitioner, employed as an eligibility examiner tasked with processing food stamp applications, consistently processed such applications in particularly late fashion, even after multiple warnings concerning her poor performance. Accordingly, we cannot conclude that the penalty of termination shocks the judicial conscience ( 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, 233-234). We reiterate that the Appellate Division has no discretionary authority or interest of justice jurisdiction in this CPLR article 78 proceeding to review the penalty imposed by respondent Commissioner of the Westchester County Department of Social Services ( see Matter of Torrance v Stout, 9 NY3d 1022, 1023; Matter of Rutkunas v Stout, 8 NY3d 897, 899).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order, insofar as appealed from, reversed, etc.