Britton v. County of Erie

46 A.D.2d 722, 360 N.Y.S.2d 340, 1974 N.Y. App. Div. LEXIS 3872

Opinion

Determination unanimously modified in accordance with Memorandum and as modified, confirmed, with costs, to petitioner. Memorandum: We find substantial evidence in the record to support the hearing officer’s findings of inefficiency and incompetence. However, we note petitioner’s prior excellent record and that her several lapses were minor in nature and arose during the first , weeks after she returned to work from an extended illness. Under the circumstances, a dismissal is shocking and disproportionate to the offenses proved (Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, 34 N Y 2d 222, 234-235). The penalty should be modified to ,a six-month suspension and the petitioner reinstated. The issues with respect to the lost wages should be litigated separately (Matter of Carville v. Board of Educ. of Utica City School Dist., 11 A D 2d 1092; Matter of Bentley v. Henninger, 10 A D 2d 900). (Review of determination dismissing petitioner from employment, transferred by order of Brie Special Term.) Present—Moule, J. P., Cardamone, Simons, Mahoney and Del Vecchio, JJ.