D'Aurizio v. Greece Central School District

—Determination confirmed without costs and petition dismissed. Memorandum: From our review of the record, we conclude that the determination that petitioner, a school bus driver employed by respondent, was guilty of two charges of misconduct is supported by substantial evidence (see generally, Matter of Collins v Codd, 38 NY2d 269, 270). We further conclude that petitioner’s argument that the Hearing Officer’s appointment violated Civil Service Law § 75 (2) "does not provide a basis for relief because it was not raised or relied upon at the agency level” (Matter of Hughes v Suffolk County Dept. of Civ. Serv., 74 NY2d 833, 834, mot to amend remittitur granted 74 NY2d 942). Petitioner failed to preserve for our review her contention that the Hearing Officer improperly admitted testimony regarding a May 4, 1994 conversation that she had with another employee of respondent. Were we to reach that issue, we would conclude that, even if that testimony was improperly admitted, "there was other evidence to more than substantiate the specific incidents of misconduct for which [petitioner] was terminated” (Matter of Sines v Opportunities for Broome, 156 AD2d 878, 880). Lastly, we cannot say on this record that the penalty of dismissal is " 'so disproportionate to the offense * * * as to be shocking to one’s sense of fairness’ ” (Matter of Pell v Board of Educ., 34 NY2d 222, 233, quoting Matter of Stolz v Board of Regents, 4 AD2d 361, 364; see, Long v Board of Educ., 162 AD2d 1050). All concur except Balio, J., who dissents in part and votes to modify in the following Memorandum.