Opinion
April 5, 1985
Appeal from the Supreme Court, Erie County, Gossel, J.
Present — Hancock, Jr., J.P., Callahan, Doerr, Denman and O'Donnell, JJ.
Determination unanimously confirmed and petition dismissed, without costs. Memorandum: Petitioner in this CPLR article 78 proceeding urges that the sanction imposed by the Board of Commissioners of the Buffalo Municipal Housing Authority terminating his employment as a housing security officer was arbitrary and capricious ( see, CPLR 7803). The proceeding was improperly transferred to our court pursuant to CPLR 7804 (g), but, because the record is sufficient to permit disposition of the issues raised, we retain the matter ( see, Matter of Schechter v. New York State Employees' Retirement Sys., 62 A.D.2d 543, 544, affd 46 N.Y.2d 983).
Where, as here, the penalty is challenged as arbitrary and capricious, the question is whether it is "'so disproportionate to the offense as to be shocking to one's sense of fairness'" ( Matter of Gibides v. Powers, 45 N.Y.2d 994, 996, quoting Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 237). The record shows that 11 charges of misconduct were preferred against petitioner; eight were upheld after a hearing, including charges of filing a false report and being absent from duty without authorization. We cannot say on this record that the penalty of dismissal was improper. We agree with respondents that the petition raises no issue of fact requiring a trial ( see, CPLR 7804 [h]).