IN RE: Clement RUSSO (1999)

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Education of the Wantagh Union Free School District, dated June 3, 1997, which modified the recommendation of a Hearing Officer, made after a hearing, found the petitioner guilty of the disciplinary charges of misconduct and incompetence concerning a smoke condition in the school at which he was employed, and terminated his employment.

ADJUDGED that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

The determination of the respondent Board of Education that the petitioner, an elementary school custodian, was guilty of disciplinary charges of misconduct and incompetence concerning a smoke condition in the school at which he was employed, was supported by substantial evidence on the record (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321;  Matter of Bullock v. Department of Social Servs., 248 A.D.2d 380, 669 N.Y.S.2d 618).   Further, under the circumstances of this case, the termination of the petitioner's employment was not so disproportionate to the offense as to shock one's sense of fairness (see, Matter of Pell v. Board of Educ., supra).   A fire began in the custodians' area of the petitioner's school, caused by cigarettes igniting waste paper in a plastic trash pail which had not been emptied, and necessitated the evacuation of the students.

The petitioner's remaining contentions are without merit.

MEMORANDUM BY THE COURT.