First, respondents failed to provide petitioner advance notice of a principal basis on which they upheld the revocation of his license, as required by 38 R.C.N.Y. § 5-30 (e) and (h) . See Block v. Ambach, 73 N.Y.2d 323, 333 (1989); Wolfe v. Kelly, 79 ArD.3d 406, 410 (1st Dep't 2010); Mayo v. Personnel Review Bd. of Health & Hosps. Corp., 65 A.D.3d 470, 472 (1st Dep't 2009); Rice v. Hilton Cent. School Dist. Bd. of Educ., 245 A.D.2d 1104, 1106 (4th Dep't 1997). "Due process requires that a licensee be given notice of the charges and evidence against him and an opportunity to appear to rebut the charges," Strom v. Erie County Pistol Permit Dept., 6 A.D.3d 1110, 1111 (4th Dep't 2004); to prepare adequately to defend the charges; and "to submit proof in response."
First, respondents failed to provide petitioner advance notice of a principal basis on which they upheld the revocation of his license, as required by 38 R.C.NY § 5–30(e) and (h). See Block v. Ambach, 73 N.Y.2d 323, 333 (1989); Wolfe v. Kelly, 79 AD3d 406, 410 (1st Dep't 2010); Mayo v. Personnel Review Bd. of Health & Hosps. Corp., 65 AD3d 470, 472 (1st Dep't 2009); Rice v. Hilton Cent. School Dist. Bd. of Educ., 245 A.D.2d 1104, 1106 (4th Dep't 1997). “Due process requires that a licensee be given notice of the charges and evidence against him and an opportunity to appear to rebut the charges,” Strom v. Erie County Pistol Permit Dept., 6 AD3d 1110, 1111 (4th Dep't 2004);
In our view, the penalty of termination is particularly unfair in light of petitioner's long service to the City and her previously unblemished work record. Prior to the charges at issue, petitioner had worked for the City for 29 years and had never been disciplined, threatened with discipline, or counseled with respect to her job performance (see Matter of Rice v. Hilton Cent. Sch. Dist. Bd. of Educ., 245 A.D.2d 1104, 1105, 667 N.Y.S.2d 524). Petitioner's direct supervisor, who supervised her for most of her tenure with the City, testified that petitioner was a hard worker and that she did her best to complete all of her assigned duties.
The Hearing Examiner determined, after a hearing, that the petitioner did not falsify his time records, but sustained the charges of neglect of duties. The determination was rational and is supported by substantial evidence in the record (see, Matter of Rice v. Hilton Cent. School Dist. Bd. of Educ., 245 A.D.2d 1104). "A reviewing court may not weigh the evidence or reject the choice made by the Hearing Officer where there is conflicting evidence and room for choice exists" (Matter of McQueeney v. Dutchess County Sheriff, 223 A.D.2d 710, 711). Therefore, the determination is confirmed.
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).
Pantelidis v. New York City Bd. of Stds. & Appeals, 43 A.D.3d at 316-17. See Mayo v. Personnel Review Bd. of Health & Hosps. Corp., 65 A.D.3d at 472; Rice v. Hilton Cent. School Dist. Bd. of Educ., 245 A.D.2d 1104, 1106 (4th Dep't 1997). V. CONCLUSION
Even if the evidence were to show another basis for denying her a license, if that basis was not cited, it may not furnish a reason for denying her a license. Pantelidis v. New York City Bd. of Stds. & Appeals, 43 A.D.3d at 316–17, 841 N.Y.S.2d 41.See Mayo v. Personnel Review Bd. of Health & Hosps. Corp., 65 A.D.3d at 472, 884 N.Y.S.2d 39;Rice v. Hilton Cent. School Dist. Bd. of Educ., 245 A.D.2d 1104, 1106, 667 N.Y.S.2d 524 (4th Dep't 1997). IV. CONCLUSION
Even if wrongdoing is shown by the evidence, if that wrongdoing was not charged, it may not furnish a reason for revoking petitioner's license or for related adverse action. Mayo v. Personnel Review Bd. of Health & Hosps. Corp., 65 A.D.3d at 472, 884 N.Y.S.2d 39;Rice v. Hilton Cent. School Dist. Bd. of Educ., 245 A.D.2d 1104, 667 N.Y.S.2d 524 (4th Dept.1997).
Therefore the court remands the proceeding to respondents to reconsider the penalty to be imposed in light of the court's interpretation of the statute and rules cited by respondents and, given the length of time petitioner's license already has been suspended or revoked, to consider modifying their penalty to a suspension covering September 2007 to the present. E.g., Wolfe v. Kelly, 79 A.D.3d 406, 411, 911 N.Y.S.2d 362 (1st Dept.2010); Rice v. Hilton Cent. School Dist. Bd. of Educ., 245 A.D.2d 1104, 1106, 667 N.Y.S.2d 524 (4th Dept.1997); Benson v. Board of Educ. of Washingtonville Cent. School Dist., 183 A.D.2d 996, 997, 583 N.Y.S.2d 594 (3d Dept.1992). See Sawtelle v. Waddell & Reed, Inc., 21 A.D.3d 820, 821, 801 N.Y.S.2d 286 (1st Dept.2005); Hull Ave. Pharmacy, Inc. v. Kaladjian, 226 A.D.2d 293, 294, 642 N.Y.S.2d 214 (1st Dept.1996); Johnson v. Town of Arcade, 281 A.D.2d 894, 895, 721 N.Y.S.2d 888 (4th Dept. 2001).