Morey v. Somers Central School District

Proceeding pursuant to CFLR article 78 to review a determination of the respondent Somers Central School District, dated January 8, 2004, which adopted the recommendation and find [559] ings of a Hearing Officer, dated January 5, 2004, made after a hearing, finding the petitioner guilty of misconduct and incompetence, and terminating his employment as head custodian of Somers High School. Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements. Contrary to the petitioner’s contention, the determination that he committed acts of misconduct and incompetence is supported by substantial evidence and, therefore, may not be set aside (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179 [1978]; Altsheler v Board of Educ. of Great Neck Union Free School Dist., 62 NY2d 656, 657 [1984]; Matter of Earles v Pine Bush Cent. School Dist., 224 AD2d 524, 524-525 [1996]; Matter of Pisculli v Board of Educ. of City of Mt. Vernon, 112 AD2d 999 [1985]). Given the numerous instances of misconduct and incompetence that were established, the penalty of termination must be sustained as it is not shocking to one’s sense of fairness (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 234 [1974]; Matter of Keller v Town of Huntington, 13 AD3d 447, 448 [2004]; Matter of Tinney v Schneider, 216 AD2d 474, 475 [1995]). The petitioner’s remaining contentions are without merit. Florio, J.P., H. Miller, Spolzino and Dillon, JJ., concur.