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IN RE: John DICKINSON, Petitioner, v. NEW YORK STATE UNIFIED COURT SYSTEM, etc., Respondent–Respondent.

Decided: October 16, 2012

ANDRIAS, J.P., SWEENY, RENWICK, ROMÁN, JJ. Raymond Nardo, Mineola, for petitioner. John W. McConnell, Office of Court Administration, New York (Pedro Morales of counsel), for respondent.

Determination of respondent, dated May 24, 2010, which found petitioner guilty of certain disciplinary charges and terminated his employment as an associate court clerk, 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 [Martin Schoenfeld, J.], entered March 2, 2011) dismissed, without costs.

Substantial evidence supports respondent's determination (see generally 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 [1978] ). Petitioner was charged with both misconduct and incompetency due to excessive absenteeism and lateness. Although petitioner correctly notes that misconduct “requir[es] a showing of willfulness or intentional misconduct” (Matter of Weatherlow v. Board of Educ. of Jamestown City School Dist., 236 A.D.2d 855, 856, 653 N.Y.S.2d 778 [4th Dept.1997] [internal quotation marks omitted] ), “a finding of incompetence ․ only requires evidence of some dereliction or neglect of duty” (Matter of Phillips v. Le Page, 4 A.D.3d 704, 705, 772 N.Y.S.2d 422 [3d Dept.2004] [internal quotation marks omitted] ). Excessive absenteeism, even if nonwillful, constitutes incompetence (see Cicero v. Triborough Bridge & Tunnel Auth., 264 A.D.2d 334, 336, 694 N.Y.S.2d 51 [1st Dept.1999] ), and contrary to petitioner's contention, respondent was not required to warn him that his absences and tardiness could lead to dismissal (see e.g. Smack v. Pattison, 80 A.D.2d 874, 874, 436 N.Y.S.2d 787 [2d Dept.1981] [no indication that the respondent warned the petitioner before terminating him for being “repeatedly late or absent from work without appropriate excuse”] ).

Respondent did not violate due process by relying on evidence of absences and tardiness outside the time period delineated in the specification of charges. Respondent relied on such evidence to determine the appropriate sanction, not to determine petitioner's guilt (see Matter of Bigelow v. Board of Trustees of Inc. Vil. of Gouverneur, 63 N.Y.2d 470, 474, 483 N.Y.S.2d 173, 472 N.E.2d 1001 [1984] ). Nor did respondent violate due process by considering a time sheet that was not introduced at petitioner's hearing. Petitioner had “notice sufficient to afford him a reasonable opportunity to prepare and present a defense or explanation” for his post-hearing absences (Matter of Kieffer v. New York State Thruway Auth., 135 A.D.2d 1017, 1019, 522 N.Y.S.2d 747 [3d Dept.1987] ).

The penalty of termination does not shock our sense of fairness (see Matter of Rannacher v. McGuire, 85 A.D.2d 521, 445 N.Y.S.2d 1 [1st Dept.1981]; Matter of De Stefano v. Village of Port Chester, 211 A.D.2d 716, 622 N.Y.S.2d 75 [2d Dept.1995] ). Being present at work is an essential job function (see e.g. Corr v. MTA Long Is. Bus, 27 F.Supp.2d 359, 366 [E.D.N.Y.1998], affd. 199 F.3d 1321, 1999 WL 980960 [2d Cir.1999] ), and petitioner's “disability ․ may not be used to shield him from the adverse consequences of inadequate job performance” (27 F.Supp.2d at 369).