IN RE: John LANE (1998)

Appeal from a judgment of the Supreme Court (Ferradino, J.), entered May 8, 1997 in Fulton County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to, inter alia, annul a determination of respondents terminating petitioner's employment.

Petitioner was hired by respondent County of Fulton on December 1, 1967 and, as of January 1996, was employed as a heavy equipment operator.   On January 13, 1996, petitioner was one of five out of 15 employees who voluntarily reported for work that Saturday morning due to a snowstorm.   However, he left work within minutes after punching in upon learning that he had not been assigned to his normal snow removal duties.   After a hearing, petitioner was found to have committed an act of insubordination based upon his refusal to accept this work assignment.   The Hearing Officer recommended that petitioner be suspended without pay for 20 days, but this penalty was rejected by respondent Highway Superintendent, who instead terminated petitioner's employment.

In this CPLR article 78 proceeding, petitioner candidly admits that the determination of misconduct is supported by the record but argues that respondents' penalty was inappropriate.   Supreme Court found that termination was disproportionate to the offense and shocking to its conscience and ordered that petitioner be reinstated and suspended without pay for two months.   Respondents appeal.

We affirm.   While there is certainly adequate support for sustaining the termination of an employee in cases of misconduct, especially insubordination (see, e.g., Matter of Crossman-Battisti v. Traficanti, 235 A.D.2d 566, 651 N.Y.S.2d 698;  Matter of Case v. Fleming, 189 A.D.2d 1070, 593 N.Y.S.2d 108;  Matter of Billings v. County of St. Lawrence, 139 A.D.2d 809, 526 N.Y.S.2d 677;  Matter of Clarke v. Board of Educ. of Vestal Cent. School Dist., 105 A.D.2d 893, 482 N.Y.S.2d 80), we conclude, as did Supreme Court, that termination under the circumstances of this case was a disproportionate penalty.   Weighing the gravity of petitioner's act of insubordination against the mitigating circumstances present in this case, particularly his nearly three decades of service to the County which included only one prior incident of misconduct (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 235, 356 N.Y.S.2d 833, 313 N.E.2d 321), termination was so disproportionate as to be shocking to one's sense of fairness (see, e.g., Matter of Smith v. Board of Educ. of Taconic Hills Cent. School Dist., 235 A.D.2d 912, 913-914, 652 N.Y.S.2d 666;  Matter of Smith v. Board of Educ., Onteora Cent. School Dist., 221 A.D.2d 755, 633 N.Y.S.2d 625, lv. denied 87 N.Y.2d 810, 642 N.Y.S.2d 858, 665 N.E.2d 660;  Matter of Perotti v. Board of Educ. of Pine Plains Cent. School Dist., 218 A.D.2d 803, 631 N.Y.S.2d 65, lv. denied 88 N.Y.2d 802, 644 N.Y.S.2d 689, 667 N.E.2d 339;  see also, Matter of Harris v. Mechanicville Cent. School Dist., 45 N.Y.2d 279, 284-285, 408 N.Y.S.2d 384, 380 N.E.2d 213;  Matter of Mitthauer v. Patterson, 8 N.Y.2d 37, 41-43, 201 N.Y.S.2d 321, 167 N.E.2d 731).

ORDERED that the judgment is affirmed, without costs.

CARPINELLO, Justice.

CARDONA, P.J., and WHITE, PETERS and SPAIN, JJ., concur.