IN RE: Darryl HENDERSON (2004)

Determination of respondent New York City Department of Health, dated October 31, 2002, dismissing petitioner from his position as a Department of Health employee, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [William A. Wetzel, J.], entered August 22, 2003) dismissed, without costs.

Petitioner does not dispute that there was substantial evidence to support respondent's findings that on the specified occasion he was verbally abusive and acted in a threatening manner toward his supervisor, but contends that the misconduct did not warrant the penalty of dismissal.   Petitioner's dismissal, however, is not under the circumstances shocking to our sense of fairness, particularly in light of his prior disciplinary record, which included a suspension for similarly abusive behavior and a warning that any future such conduct would result in disciplinary proceedings.   Accordingly, the penalty may not be disturbed (see Turner v. Simpson, 60 N.Y.2d 959, 961-962, 471 N.Y.S.2d 56, 459 N.E.2d 165 [1983] ).