IN RE: Richard SMITH

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

IN RE: Richard SMITH, petitioner, v. BOARD OF EDUCATION OF the WANTAGH UNION FREE SCHOOL DISTRICT, et al., respondents.

Decided: March 22, 1999

CORNELIUS J. O'BRIEN, J.P., DAVID S. RITTER, WILLIAM C. THOMPSON and DANIEL W. JOY, JJ. Louis D. Stober, Jr., LLC, Garden City, N.Y. (Christine L. Cardinale of counsel), for petitioner. Ingerman Smith, LLP, Northport, N.Y. (Neil M. Block of counsel), for respondents.

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Education of the Wantagh Union Free School District, dated June 3, 1997, which adopted the recommendation of a Hearing Officer, made after a hearing, that the petitioner was guilty of the disciplinary charges of misconduct concerning smoking on school grounds, which led to a fire, and terminated his employment.

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

The determination of the respondent Board of Education that the petitioner, an elementary school custodian, was guilty of disciplinary charges of misconduct concerning smoking on school grounds was supported by substantial evidence on the record (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 Bullock v. Department of Social Servs., 248 A.D.2d 380, 669 N.Y.S.2d 618).   Further, under the circumstances of this case, the termination of the petitioner's employment was not so disproportionate to the offense as to shock one's sense of fairness (see, Matter of Pell v. Board of Educ., supra).   A fire in the basement of the petitioner's school, caused by cigarettes igniting waste paper in a plastic trash pail near the custodians' desk, necessitated the evacuation of the students.

The petitioner's remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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