IN RE: Vernell Cheeseboro (2011)

Argued-February 10, 2011

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of the Board of Education of the Port Chester-Rye Union Free School District, dated October 16, 2009, which, after a hearing pursuant to Civil Service Law § 75, found the petitioner guilty of charges of misconduct and incompetence, and terminated her employment.

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

Contrary to the petitioner's contention, the determination that she was guilty of misconduct and incompetence was supported by substantial evidence in the record, including, inter alia, eyewitness testimony regarding an incident in which the petitioner instructed a student to convey a threat and profanity to another student (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 N.Y.2d 176, 179-180;  Matter of Overton v Board of Educ. of the Yonkers City School Dist., 72 AD3d 1094;  Matter of Cardenas v Board of Educ. of Yonkers City School Dist., 298 A.D.2d 390;  see also Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 230).

Moreover, the penalty of termination was not so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law (see Matter of Kreisler v. New York City Tr. Auth., 2 NY3d 775;  Matter of Kelly v. Safir, 96 N.Y.2d 32, 38;  Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d at 237;  Matter of Overton of Board of Educ. of the Yonkers City School Dist., 72 AD3d 1094).

The petitioner's remaining contentions are without merit.

DILLON, J.P., FLORIO, DICKERSON and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court