Aston v. Rydzynski

¶1Where, 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 NY2d 994, 996, quoting Matter of Pell v Board of Educ., 34 NY2d 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]). (Article 78 proceeding transferred by order of Supreme Court, Erie County, Gossel, J.) Present — Hancock, Jr., J. P., Callahan, Doerr, Denman and O’Donnell, JJ.