Tiano v. Middle Country School District , 710 N.Y.S.2d 923 ( 2000 )

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Middle Country School District, dated July 1, 1998, which adopted the finding of a Hearing Officer, made after a hearing, that the petitioner was guilty of misconduct, and terminated his employment as a school custodian.

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 an appropriate penalty less severe than termination of the petitioner’s employment.

The determination that the petitioner was guilty of misconduct is supported by substantial evidence in the record (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176). However, under all of the circumstances, the penalty of dismissal was so disproportionate to the offense committed as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222). The petitioner had over 10 years of satisfactory service, and the misconduct, while serious, was an isolated event (see, Matter of Rice v Hilton Cent. School Dist. Bd. of Educ., 258 AD2d 900; Matter of Drakeford v Board of Educ., 242 AD2d 627). The matter is remitted to the respondent for the imposition of a penalty less severe than termination of the petitioner’s employment. O’Brien, J. P., McGinity, Luciano and Schmidt, JJ., concur.