Opinion
May 10, 1999
PRESENT: GREEN, J. P., PINE, WISNER, CALLAHAN AND BALIO, JJ.
Determination unanimously modified in the exercise of discretion and as modified confirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: We previously concluded that the determination finding petitioner guilty of misconduct and dishonesty is supported by substantial evidence ( Matter of Rice v. Hilton Cent. School Dist. Bd. of Educ., 245 A.D.2d 1104). The penalty of dismissal, however, is so disproportionate to the offense as to shock one's sense of fairness ( see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 233). In view of petitioner's long and satisfactory service and in the exercise of our discretion, we conclude that the maximum penalty warranted in the circumstances of this case is suspension without pay and benefits for two months retroactive to October 8, 1996. We remit the matter to Supreme Court for calculation of petitioner's back pay and benefits pursuant to Civil Service Law § 77 ( cf., Matter of Cromwell v. Bates, 117 A.D.2d 667). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Monroe County, Lunn, J.)