IN RE: William BROWN

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Supreme Court, Appellate Division, First Department, New York.

IN RE: William BROWN, Petitioner, v. NEW YORK CITY HOUSING AUTHORITY, Respondent.

Decided: May 29, 2007

TOM, J.P., ANDRIAS, NARDELLI, WILLIAMS, BUCKLEY, JJ. Jerold E. Levine, New York, for petitioner. Ricardo Elias Morales, New York (Jeffrey Niederhoffer of counsel), for respondent.

Determination of respondent, dated October 12, 2005, which terminated petitioner's employment, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Robert D. Lippmann, J.], entered June 20, 2006) dismissed, without costs.

 We reject petitioner's argument that respondent's decision to terminate his employment was unreasonable, arbitrary and capricious, an abuse of discretion and unfair.   It is well settled that an administrative sanction must be upheld unless it so shocks the judicial conscience as to constitute an abuse of discretion as a matter of law (Matter of Featherstone v. Franco, 95 N.Y.2d 550, 554, 720 N.Y.S.2d 93, 742 N.E.2d 607 [2000] ) in its disproportion to the offense (Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 234, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ).

Here, the trial officer noted that petitioner had been disciplined repeatedly since he was first promoted to Supervisor of Caretakers in 1998, but had failed to respond.   Most significantly, petitioner's misconduct included disruptive acts, such as walking away from a supervisor while being counseled on job performance, and improper physical contact with a supervisor on at least one occasion.

 Petitioner argues that following the termination of his employment, respondent allegedly took steps to make it more difficult for him to regain his employment by changing his performance evaluation from satisfactory to unsatisfactory.   Because this argument was not included in the record pertaining to the administrative disciplinary hearing, it is not properly before this Court in this article 78 proceeding (see Matter of Montalbano v. Silva, 204 A.D.2d 457, 458, 611 N.Y.S.2d 630 [1994] ).   In any event, petitioner's unsupported, conclusory allegations lack merit.

We have considered petitioner's remaining arguments and find them unavailing.