IN RE: Application of Issac KINLOCK (1998)

Amended order and judgment (one paper), Supreme Court, New York County (Louis York, J.), entered December 17, 1996, which, inter alia, granted petitioner's application pursuant to CPLR article 78 to the extent of vacating respondent's determination terminating petitioner's employment as a sanitation worker, restoring petitioner to service forthwith and retroactively, and remanding the matter to respondent for implementation of the monetary sanction recommended by the Administrative Law Judge, unanimously affirmed, without costs.

In light of the numerous instances cited by the Administrative Law Judge in which respondent imposed penalties less severe than termination for violations of its sick leave policy similar to that for which petitioner was disciplined, Supreme Court properly concluded that respondent's determination to terminate petitioner for such violations was arbitrary and capricious, an abuse of discretion, and shocking to the conscience of the court.   We also find that the penalty was entirely disproportionate to the offense (see, Matter of Pell v. Board of Education, 34 N.Y.2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321).

MEMORANDUM DECISION.