Rathburn v. Hinchen

Judgments unanimously reversed, with costs, determination modified by annulling penalty imposed and otherwise determination confirmed, and matter remitted to appellant Hinchen for imposition of an appropriate penalty, in accordance with the following memorandum: Although Special Term should have transferred the proceeding to the Appellate Division (CPLR 7803, subd 4; 7804, subd [g]), since the record is now before this court, we will treat the proceeding as if it had been properly transferred. Petitioner has been a library clerk with the Onondaga County Public Library for nearly 18 years. The charges which resulted in petitioner’s dismissal from her position relate to isolated conduct involving her failure to call in and report her intended absence from work in timely fashion on only two occasions. In our view the penalty of dismissal under the totality of the circumstances presented by this record is overly severe (see Matter of Henry v Wilson, 85 AD2d 885, 886). We conclude that the maximum sanction that could be supported by this record is a suspension without pay for a period of two weeks (see Rob Tess Rest. Corp. v New York State Liq. Auth., 49 NY2d 874). (Appeal from judgments of Supreme [972] Court, Onondaga County, McLaughlin, J. — art 78.) Present — Dillon, P. J., Callahan, Doerr, Denman and Moule, JJ.