IN RE: Willard SMALL (2007)

In a proceeding pursuant to CPLR article 78 to review a determination of the respondents Village Board of the Village of Ossining and the Village of Ossining, dated March 1, 2005, which adopted the recommendations of a Hearing Officer dated January 28, 2005, made after a hearing, finding the petitioner guilty of misconduct and terminating his employment, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Zambelli, J.), entered October 20, 2005, which, in effect, denied the petition and dismissed the proceeding.

ORDERED that judgment is affirmed, with costs.

 Contrary to the petitioner's contention, there was no evidence indicating that the respondents considered his post-hearing infractions of the attendance policy, and thereby violated his due process rights (cf. Matter of Lee v. Board of Educ. of Pelham Union Free School Dist., 90 A.D.2d 775, 455 N.Y.S.2d 286).   Furthermore, since material terms were omitted from a potential settlement agreement for future negotiations, there was no binding settlement agreement stipulating that the petitioner would be suspended, rather than have his employment terminated (see Maffea v. Ippolito, 247 A.D.2d 366, 367, 668 N.Y.S.2d 653).

Finally, in light of the petitioner's history of absenteeism, the penalty of termination imposed was not so disproportionate to the offenses as be shocking to one's sense of fairness (see Thomas v. City of Mount Vernon Dept. of Pub. Safety, 267 A.D.2d 241, 699 N.Y.S.2d 872;  Matter of Sigle v. Slavin, 161 A.D.2d 644, 555 N.Y.S.2d 421;  Matter of Collins v. Amrhein, 134 A.D.2d 346, 347-348, 520 N.Y.S.2d 823).