IN RE: Catherine FICKEN

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

IN RE: Catherine FICKEN, Petitioner, v. VOCATIONAL EDUCATION AND EXTENSION BOARD OF THE COUNTY OF SUFFOLK, etc., et al., Respondents.

Decided: April 28, 1997

Before BRACKEN, J.P., and COPERTINO, SANTUCCI and McGINITY, JJ. Schlachter & Mauro, Commack (Reynold A. Mauro, of counsel), for petitioner. Robert J. Cimino, County Attorney, Hauppauge (Theodore D. Sklar and Randy Berler, of counsel), for respondents.

Proceeding pursuant to CPLR article 78 to review a determination of the Vocational Education and Extension Board of the County of Suffolk, dated December 6, 1993, which, after a hearing, found the petitioner guilty of various charges of misconduct and terminated her employment.

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

 The petitioner, formerly employed by the Vocational Education and Extension Board of the County of Suffolk (hereinafter the agency), contends that substantial evidence was lacking to support a finding that she was guilty of two charges of theft of services for having conducted a mortgage application business on agency property in violation of agency procedures.   This contention is without merit.

 It is well settled that in a CPLR article 78 proceeding to review the determination of an administrative board, made after a hearing, the court must uphold the determination unless it is not supported by substantial evidence on the record when read as a whole (see, Matter of Lahey v. Kelly, 71 N.Y.2d 135, 524 N.Y.S.2d 30, 518 N.E.2d 924;  see, Berenhaus v. Ward, 70 N.Y.2d 436, 522 N.Y.S.2d 478, 517 N.E.2d 193).

Included in the evidence presented is the petitioner's admission that she met with a client to conduct mortgage business on agency property on agency time.   This admission coupled with the testimony of two coworkers who testified that the petitioner typed mortgage documents on agency property during agency time is sufficient to provide substantial evidence to sustain the findings of misconduct.

 The petitioner conducted this business after she was given verbal and written warnings that such behavior was prohibited and could result in serious disciplinary action.   Under the circumstances of this case, we do not find the penalty of dismissal to be so disproportionate to the offense 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 petitioner's remaining contentions are either not properly before this court or without merit.

MEMORANDUM BY THE COURT.

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