Hill v. Stolzenberg , 666 N.Y.S.2d 647 ( 1997 )

—Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of Hospitals of Westchester County, dated October 4, 1996, which, after a hearing, found the petitioner guilty of misconduct and/or incompetence and dismissed him from his position as Senior Nursing Aide.

Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed, with costs.

The petitioner was employed as a Senior Nursing Aide at the Westchester County Medical Center since 1988. On or about February 5, 1996, the petitioner was charged with 71 counts of misconduct and/or incompetence arising from his record of absence and lateness, failure to perform assigned duties, and threatening the life of his supervisor. After a hearing, a Hearing Officer found the petitioner guilty of all the charges except eight which were withdrawn by the respondents. The Commissioner of Hospitals of Westchester County adopted the Hearing Officer’s findings of fact and imposed the penalty of dismissal. Thereafter, the petitioner commenced this proceeding pursuant to CPLR article 78 to review the Commissioner’s determination.

There was substantial evidence to support the Commissioner’s determination that the petitioner had numerous unauthorized absences, failed to comply with proper procedure in requesting leave, failed to perform assigned tasks, and threatened the life of his supervisor in discussions with a third party (see, Matter of Pell v Board of Educ., 34 NY2d 222, 231; Matter of Conte v Koehler, 176 AD2d 507).

Furthermore, the penalty of dismissal was not so disproportionate to the offenses committed as to be shocking to one’s sense of fairness (see, Trotta v Ward, 77 NY2d 827; Matter of Holmes v Simpson, 64 NY2d 678; Matter of Pell v Board of Educ., supra, at 234; Matter of Conte v Koehler, supra).

The petitioner’s remaining contentions are not properly before this Court or without merit. O’Brien, J. P., Joy, Friedmann and Goldstein, JJ., concur.