Opinion
October 10, 1995
Appeal from the Supreme Court, Kings County (I. Aronin, J.).
Ordered that, on the Court's own motion, the appellant's notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,
Ordered that the amended judgment is affirmed, with costs.
In order to annul an administrative determination of a penalty made after a hearing, a court must conclude that the penalty is shocking to one's sense of fairness. A penalty is shocking to one's sense of fairness if it is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure, or turpitude of that individual or if it is disproportionate to the harm or risk of harm to the agency or institution or to the public generally visited or threatened by the derelictions of the individual (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222).
We agree with the Supreme Court that termination of the petitioner's employment is shocking to one's sense of fairness. The petitioner's misconduct consisted of a failure to adequately communicate his illness and prognosis to the New York City Transit Authority (hereinafter the NYCTA) after he apparently suffered a stroke while visiting relatives in Egypt. Under the circumstances, including the petitioner's exemplary employment record, dismissal was clearly inappropriate.
Finally, this matter was correctly remitted to the NYCTA for a calculation of the back pay that it owes to the petitioner for the period of the petitioner's suspension, including the period from the opening of the petitioner's default to the final resolution of this matter (see, Levine v. New York City Tr. Auth., 70 A.D.2d 900, affd 49 N.Y.2d 747; Matter of Amkraut v Hults, 21 A.D.2d 260, affd 15 N.Y.2d 627). Thompson, J.P., Copertino, Hart and Goldstein, JJ., concur.