Opinion
No. 2007-10713.
December 9, 2008.
Proceeding pursuant to CPLR article 78 to review a determination of Joshua Lipsman, as Commissioner of the Westchester County Department of Health, dated July 31, 2007, which adopted the finding and recommendation of a hearing officer dated July 17, 2007, made after a hearing, inter alia, finding the petitioner, Mary Lewis, guilty of certain charges of misconduct, and suspended her from employment without pay for a period of 45 days.
James M. Rose, White Plains, N.Y., for petitioner.
Charlene M. Indelicato, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz and Thomas G. Gardiner of counsel), for respondents.
Before: Ritter, J.P., Florio, Miller and Dillon, JJ. concur.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
Contrary to the petitioner's contention, the determination that she engaged in misconduct is supported by substantial evidence in the record ( see Matter of Berenhaus v Ward, 70 NY2d 436; Matter of Alexander v New York State Off of Children Family Servs., 50 AD3d 895). Further, "[a]n administrative penalty must be upheld unless it `is so disproportionate to the offense as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law" ( Matter of Kreisler v New York City Tr. Auth., 2 NY3d 775, 776, quoting Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale Mamaroneck, Westchester County, 34 NY2d 222, 237). Here, it cannot be concluded, "as a matter of law, that the penalty [imposed] shocks the judicial conscience" ( Matter of Kreisler v New York City Tr. Auth., 2 NY3d at 776; see Matter of Ellis v Mahon, 11 NY3d 754; Matter of Torrance v Stout, 9 NY3d 1022).
The petitioner's remaining contentions are without merit.