IN RE: Michael P. McDERMOTT (2005)

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Town Board of the Town of Patterson, dated July 9, 2003, which adopted the recommendation and findings of a hearing officer, finding the petitioner guilty of misconduct, and terminated his employment with the Town of Patterson Highway Department.

ADJUDGED that the petition is granted to the extent that so much of the determination as imposed a penalty is annulled, without costs or disbursements, the matter is remitted to the Town Board of the Town of Patterson to impose an appropriate penalty less severe than termination of the petitioner's employment, and the petition is otherwise denied, the proceeding is otherwise dismissed, and the determination is otherwise confirmed.

The determination that the petitioner was guilty of misconduct was supported by substantial evidence in the record (see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 408 N.Y.S.2d 54, 379 N.E.2d 1183).   However, under all of the circumstances, the penalty of dismissal was so disproportionate to the offense as to be shocking to one's sense of fairness (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 Rapkiewicz v. Middle Country School Dist., 273 A.D.2d 392, 393, 711 N.Y.S.2d 326).   Accordingly, we remit the matter to the Town Board of the Town of Patterson for the imposition of a penalty less severe than termination of the petitioner's employment.