IN RE: William GOUDY

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

IN RE: William GOUDY, petitioner, v. Jennifer SCHAFFER, et al., respondents.

Decided: December 27, 2005

A. GAIL PRUDENTI, P.J., SONDRA MILLER, ROBERT A. SPOLZINO, and MARK C. DILLON, JJ. James M. Rose, White Plains, N.Y., for petitioner. Charlene M. Indelicato, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz and Thomas G. Gardiner of counsel), for respondents.

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the Westchester County Department of Community Mental Health, dated August 2, 2004, which adopted the recommendation of a hearing officer dated July 14, 2004, made after a hearing, finding the petitioner guilty of incompetence and misconduct and terminating his employment as a counselor with the Westchester County Employee Assistance Program.

ADJUDGED that the petition is granted, on the law and as an exercise of discretion, without costs or disbursements, to the extent that so much of the determination as imposed a penalty terminating the petitioner's employment is annulled, the petition is otherwise denied, the determination is otherwise confirmed, and the matter is remitted to the respondents for the imposition of an appropriate penalty less severe than termination of the petitioner's employment.

Contrary to the petitioner's contention, the determination of the hearing officer sustaining 42 specifications of incompetence and misconduct was supported by substantial evidence (see CPLR 7803[4];  Matter of Lahey v. Kelly, 71 N.Y.2d 135, 140, 524 N.Y.S.2d 30, 518 N.E.2d 924;  300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183;  see also Matter of McEniry v. Landi, 84 N.Y.2d 554, 620 N.Y.S.2d 328, 644 N.E.2d 1019).

Nevertheless, even though the charges were properly sustained, we conclude that, under all the circumstances, the penalty of dismissal was so disproportionate to the offenses committed 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).   The evidence did not establish, nor does the respondent suggest, that the petitioner's misconduct was one of moral turpitude or motivated by malice or selfishness;  nor was there proof that the operations or finances of the respondent were adversely affected by the petitioner's transgressions (see Matter of Muraik v. Landi, 19 A.D.3d 697, 798 N.Y.S.2d 497;  Matter of Lane v. County of Fulton, 249 A.D.2d 750, 672 N.Y.S.2d 144;  Matter of Perotti v. Board of Educ. of Pine Plains Cent. School Dist., 218 A.D.2d 803, 631 N.Y.S.2d 65).   The record indicates that the petitioner had no prior disciplinary problems, that he served in the military for nine years, that the sanction of termination imposed a devastating impact on his ability to support his family, and that neither the hearing officer nor the respondent gave sufficient weight to any of those mitigating factors (see Matter of Muraik v. Landi, supra;  Matter of Waldren v. Town of Islip, 18 A.D.3d 566, 795 N.Y.S.2d 262;  Matter of Schnaars v. Copiague Union Free School Dist., 275 A.D.2d 462, 463-464, 713 N.Y.S.2d 84).   Accordingly, we grant the petition to the extent of annulling so much of the determination as imposed a penalty of termination of the petitioner's employment, and remit the matter to the respondent for the imposition of a less severe penalty.

The petitioner's remaining contentions are without merit or have been rendered academic in light of our determination.

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