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DeNardo v. Board of Education of Mamaroneck Union Free School Dist.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


April 21, 2009

IN THE MATTER OF VALERIE DENARDO, PETITIONER,
v.
BOARD OF EDUCATION OF MAMARONECK UNION FREE SCHOOL DISTRICT, ET AL., RESPONDENTS.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ROBERT A. SPOLZINO, J.P., STEVEN W. FISHER, HOWARD MILLER and RUTH C. BALKIN, JJ.

(Index No. 23693/07)

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of the Board of Education of the Mamaroneck Union Free School District dated July 18, 2007, which, in effect, adopted the recommendation of a hearing officer, dated June 28, 2007, made after a hearing, finding the petitioner guilty of certain charges of misconduct and incompetence, and terminated her employment as a payroll clerk.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

"The review of administrative determinations in employee disciplinary cases made as a result of a hearing required by Civil Service Law § 75 is limited to a consideration of whether the determination is supported by substantial evidence" (Matter of Thomas v County of Rockland, Dept. of Hospitals, 55 AD3d 745, 745-746 [internal quotation marks and citation omitted]). Furthermore, "[a]n administrative penalty must be upheld unless it is so disproportionate to the offense... as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law" (Matter of Kreisler v New York City Tr. Auth., 2 NY3d 775, 776, quoting Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 237).

In this case, the determination that the petitioner was guilty of the subject charges was supported by substantial evidence. In addition, the penalty of termination of her employment was not so disproportionate to the offenses involved as to be shocking to one's sense of fairness. Accordingly, the challenged determination must be confirmed, the petition denied, and the proceeding dismissed on the merits.

The petitioner's remaining contentions are without merit.

SPOLZINO, J.P., FISHER, MILLER and BALKIN, JJ., concur.

20090421

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