IN RE: Steadman CURRITHERS (1999)

Proceeding pursuant to CPLR article 78 to review a determination of the respondents dated December 9, 1997, which, after a hearing, found the petitioner guilty of misconduct and incompetence based upon his conviction of driving while his ability was impaired, upon his plea of guilty, and dismissed him from his position as a school bus driver.

ADJUDGED that the petition is granted, on the law, without costs or disbursements, to the extent that the penalty imposed is annulled, the determination is otherwise confirmed, the proceeding is otherwise dismissed on the merits, and the matter is remitted to the respondents for the imposition of a new penalty other than dismissal.

The finding that the petitioner was guilty of misconduct is supported by substantial evidence (see, Matter of [Hudacs] Crump, 203 A.D.2d 833, 611 N.Y.S.2d 356).   However, under all of the circumstances of this case, including the fact that this incident was an isolated act in an otherwise unblemished record of 15 years employment, and in light of the petitioner's unblemished driving record on and off the job prior to this incident, the penalty of dismissal is shocking to one's sense of fairness (see, Matter of Benson v. Bd. of Educ. of Washingtonville Cent. School Dist., 209 A.D.2d 693, 619 N.Y.S.2d 153;  cf., Trotta v. Ward, 77 N.Y.2d 827, 566 N.Y.S.2d 199, 567 N.E.2d 241).   Accordingly, we remit the matter to the respondents for the imposition of a new penalty other than dismissal.

MEMORANDUM BY THE COURT.