Opinion
November 9, 1982
Appeal from the Supreme Court, Onondaga County, Inglehart, J.
Present — Simons, J.P., Callahan, Denman, Moule and Schnepp, JJ.
Judgment unanimously reversed, determination confirmed, with costs, and petition dismissed. Memorandum: Respondent, Mayor of Oswego, appeals from a judgment of Special Term entered February 27, 1982, which granted the petition in this CPLR article 78 proceeding to annul the Mayor's determination to dismiss petitioner from his position with the city's department of public works. Special Term also ordered petitioner reinstated to his former position. Since the only issue raised was that of substantial evidence, this proceeding should have been transferred to the Appellate Division (CPLR 7804, subd [g]). The record now being before this court, we will treat the proceeding as if it had been properly transferred. The record shows that the findings of the hearing officer, as adopted by the Mayor, are supported by substantial evidence ( 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 N.Y.2d 176). Further, the penalty of dismissal imposed by the Mayor is not "shocking to one's sense of fairness" ( Matter of Pell v Board of Educ., 34 N.Y.2d 222). Petitioner had received two prior suspensions without pay and been warned that any further violations of department of public works' policies and work rules would result in his termination. Dismissal is not an excessive penalty where an employee's record reveals a consistent pattern of misconduct ( Matter of Santarella v New York City Dept. of Correction, 53 N.Y.2d 948).