Gomez v. New York City Department of Education ( 2008 )

Williams and Buckley, JJ.,

concur in a separate memorandum by Buckley, J, as follows: Because the penalty imposed (revocation of petitioner’s school bus driver certification) for petitioner’s failure to appear for a drug test was harsher than the penalty permitted under the pertinent rules if she had taken the test and failed, the penalty imposed 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, 233 [1974]), and therefore should be annulled and the matter remanded to the Department for imposition of an appropriate, lesser penalty.