Harris v. Mechanicville Cent. School Dist. , 45 N.Y.2d 279, 284–85, 408 N.Y.S.2d 384, 380 N.E.2d 213 (1978) ; Brito v. Walcott , 115 A.D.3d 544, 546, 982 N.Y.S.2d 105 (1st Dep't 2014). SeeRusso v. New York City Dept. of Educ. , 25 N.Y.3d 946, 948, 6 N.Y.S.3d 549, 29 N.E.3d 896 (2015) ; Kelly v. Safir , 96 N.Y.2d at 38, 724 N.Y.S.2d 680, 747 N.E.2d 1280 ; Silverman v. Carrion , 146 A.D.3d at 571, 45 N.Y.S.3d 421; Asch v. New York City Bd./Dept. of Educ. , 104 A.D.3d at 421, 960 N.Y.S.2d 106. The hearing officer typically is in a "far superior position" than the court in reviewing the hearing record to assess a penalty warranted by the record, since the hearing officer observed and heard the witnesses' testimony.

The termination was ultimately affirmed by the New York State Court of Appeals in 2015. Russo v. New York City Dep't of Educ., 25 N.Y.3d 946, 948 (N.Y. 2015). Russo filed his federal complaint against New York City and New York State on February 4, 2016.

"That reasonable minds might disagree over what the proper penalty should have been does not provide a basis for vacating the arbitral award or refashioning the penalty" (City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917, 920 [2011]). Here, the penalties imposed are not irrational and do not shock the conscience (see Matter of Russo v New York City Dept. of Educ., 25 NY3d 946, 948 [2015], cert denied ___ US ___, 136 S Ct 416 [2015]; Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]; Matter of Featherstone v Franco, 95 NY2d 550, 554 [2000]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233 [1974]). The Appellate Division exceeded its authority by reweighing the evidence and substituting its judgment for that of the hearing officer.

"That reasonable minds might disagree over what the proper penalty should have been does not provide a basis for vacating the arbitral award or refashioning the penalty" ( City School Dist. of the City of N.Y. v. McGraham, 17 NY3d 917, 920, 934 N.Y.S.2d 768, 958 N.E.2d 897 [2011] ). Here, the penalties imposed are not irrational and do not shock the conscience (see Matter of Russo v. New York City Dept. of Educ., 25 NY3d 946, 948, 29 N.E.3d 896 [2015], cert denied 577 U.S. ––––, 136 S.Ct. 416, 193 L.Ed.2d 317 [2015] ; Matter of Kelly v. Safir, 96 N.Y.2d 32, 38, 724 N.Y.S.2d 680, 747 N.E.2d 1280 [2001] ; Matter of Featherstone v. Franco, 95 N.Y.2d 550, 554, 720 N.Y.S.2d 93, 742 N.E.2d 607 [2000] ; Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ).

Here, the petitioner failed to demonstrate that the arbitration award violated a strong public policy, was irrational, or clearly exceeded a specifically enumerated limitation of the arbitrator's power (see CPLR 7511[b]; Matter of Lewis v New York City Tr. Auth., 183 A.D.3d at 738; Matter of Ross v New York City Metro. Tr. Auth., 174 A.D.3d 627, 628; Matter of Transit Workers Union, Local 100 v New York City Tr. Auth., 152 A.D.3d 530, 531). Moreover, contrary to the petitioner's contention, the arbitrator properly considered the petitioner's entire record of employment in determining a penalty (see Matter of Levy v New York State Workers' Compensation Bd., 292 A.D.2d 388, 389), and the penalty of termination was not so disproportionate to the offenses charged as to be shocking to one's sense of fairness (see Matter of Russo v New York City Dept. of Educ., 25 N.Y.3d 946, 948; Matter of Weinstein v New York State Workers' Compensation Bd., 135 A.D.3d 948, 949).

Judgment, Supreme Court, New York County (Carmen Victoria St. George, J.), entered January 17, 2019, vacating the penalty portion of an arbitration award and remanding the matter to respondents for the imposition of a lesser penalty, unanimously reversed, on the law, the penalty reinstated, and the proceeding brought pursuant to CPLR article 75 dismissed, without costs.We do not find the penalty of termination of petitioner's employment as a teacher shocking to one's sense of fairness (see Matter ofPell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ), given the evidence of petitioner's pedagogical shortcomings, documented by supervisors and a peer evaluator, and his lack of improvement during two school years (see Matter ofJohnson v. Board of Educ. of the City Sch. Dist. of the City of N.Y., 171 A.D.3d 548, 98 N.Y.S.3d 573 [1st Dept. 2019] ; Matter ofRusso v. New York City Dept. of Educ., 25 N.Y.3d 946, 948, 6 N.Y.S.3d 549, 29 N.E.3d 896 [2015], cert denied 577 U.S. 957, 136 S.Ct. 416, 193 L.Ed.2d 317 [2015] [notwithstanding 18 years of satisfactory teaching, termination after three years of unsatisfactory ratings that followed was not shocking to sense of fairness] ).We have considered petitioner's remaining contentions and find them unavailing.

[H]er actions demonstrated a lack of integrity and irrevocably comprised her ability to serve as a role model for students.” That petitioner had a previously unblemished record is not compelling, especially with the facts herein (see Russo v. NYC Dept. of Educ., 25 N.Y.3d 946, 6 N.Y.S.3d 549, 29 N.E.3d 896 [2015] ; Altsheler v. Board. of Educ. of Great Neck Union Free School Dist., 62 N.Y.2d 656, 476 N.Y.S.2d 281, 464 N.E.2d 979 [1984] ; Matter of Montanez v. Department of Educ. of the City of N.Y., 110 A.D.3d 487, 973 N.Y.S.2d 132 [1st Dept.2013] ).

While the excessiveness of a penalty is not one of the enumerated bases upon which an arbitration award may be vacated (see CPLR 7511[b] ), where, as here, an arbitration is compulsory, judicial review under CPLR article 75 requires that the award be in accord with due process (see Matter of Hegarty v. Board of Educ. of the City of New York, 5 A.D.3d 771, 773, 773 N.Y.S.2d 611; Matter of Board of Educ. of Westhampton Beach Union Free School Dist. v. Ziparo, 275 A.D.2d 411, 712 N.Y.S.2d 873). Accordingly, contrary to the respondent's contention, the excessiveness of a penalty is a basis upon which an arbitration award may be vacated (see Matter of Russo v. New York City Dept. of Educ., 25 N.Y.3d 946, 948, 6 N.Y.S.3d 549, 29 N.E.3d 896; Matter of Hegarty v. Board of Educ. of the City of New York, 5 A.D.3d at 773, 773 N.Y.S.2d 611). However, in the instant matter, the penalty of termination was not so disproportionate to the offenses as to be shocking to one's sense of fairness (see Matter of Poidomani v. Nassau Bd. of Coop. Educ. Servs., 127 A.D.3d 978, 979, 4 N.Y.S.3d 910; Matter of Bosch v. City of Middletown, N.Y., 127 A.D.3d 855, 855, 4 N.Y.S.3d 898; Matter of Martin v. Board of Trustees of the Vil. of Pelham Manor, 86 A.D.3d 645, 646, 927 N.Y.S.2d 599; Matter of Gibbons v. New York State Unified Ct. Sys., Off. of Ct. Admin., 78 A.D.3d 942, 944, 911 N.Y.S.2d 169; see also Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 237, 356 N.Y.S.2d 833, 313 N.E.2d 321).

While the excessiveness of a penalty is not one of the enumerated bases upon which an arbitration award may be vacated (see CPLR 7511[b]), where, as here, an arbitration is compulsory, judicial review under CPLR article 75 requires that the award be in accord with due process (see Matter of Hegarty v. Board of Educ. of the City of New York, 5 A.D.3d 771, 773, 773 N.Y.S.2d 611; Matter of Board of Educ. of Westhampton Beach Union Free School Dist. v. Ziparo, 275 A.D.2d 411, 712 N.Y.S.2d 873). Accordingly, the excessiveness of a penalty is a basis upon which the arbitration award may be vacated (see Matter of Russo v. New York City Dept. of Educ., 25 N.Y.3d 946, 948, 6 N.Y.S.3d 549, 29 N.E.3d 896; Matter of Hegarty v. Board of Educ. of the City of New York, 5 A.D.3d at 773, 773 N.Y.S.2d 611). Here, however, the penalty of termination was not so disproportionate to the offenses as to be shocking to one's sense of fairness (see Weinstein v. New York State Workers' Comp. Bd., 135 A.D.3d 948, 949, 22 N.Y.S.3d 900, 901; Matter of Poidomani v. Nassau Bd. of Coop. Educ. Servs., 127 A.D.3d 978, 979, 4 N.Y.S.3d 910; Matter of Bosch v. City of Middletown, N.Y., 127 A.D.3d 855, 855, 4 N.Y.S.3d 898; Matter of Martin v. Board of Trustees of the Vil. of Pelham Manor, 86 A.D.3d 645, 646, 927 N.Y.S.2d 599; Matter of Gibbons v. New York State Unified Ct. Sys., Off of Ct. Admin., 78 A.D.3d 942, 944, 911 N.Y.S.2d 169; see also Matter of Pell v. Board of Educ. ofUnion Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 237, 356 N.Y.S.2d 833, 313 N.E.2d 321).

He consistently sought out additional help, and notably, was accepted into the PIP program in Spring 2017 and advised a spot might be available during the next school year. Moreover, while courts have repeatedly upheld the penalty of termination of a tenured teacher when a teacher receives an ineffective APPR rating in two consecutive years (see e.g.Ferraro v. Farina , 156 AD3d 549 [1st Dept 2017] ; Matter of Mazzella v. Bedford Cent. School Dist. , 154 AD3d 761 [2d Dept 2017] ), or the record supports a finding that a teacher was professionally incompetent for a sustained period (see e.g.Russo v. New York City Dept. of Educ. , 25 NY3d 946 [2015] ), petitioner here did not receive two consecutive ineffective ratings, and his performance evaluation was based on less than a full two year period. CompareMorales v. New York City Bd./Dept. of Educ. , 150 AD3d 468 (1st Dept 2017) ; Matter of Reed v. Department of Educ. of City of NY , 134 AD3d 499 (1st Dept 2015) ; Matter of Benjamin v. New York City Bd./Dept. of Educ. , 105 AD3d 677 (1st Dept 2013).