Davis v. Board of Education of Yonkers City School District

241 A.D.2d 521, 663 N.Y.S.2d 987, 1997 N.Y. App. Div. LEXIS 7742

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 21, 1997
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Education of the Yonkers City School District, dated January 17, 1996, which, after a hearing, inter alia, found the petitioner guilty of incompetence and misconduct and dismissed him from his position as a permanent custodial worker.

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

Contrary to the petitioner’s contention, the determination that he was guilty of incompetence and misconduct was supported by substantial evidence in the record, including written reports and testimony as to the repeated deficiencies in his work performance, and his failure to improve despite subsequent oral and written warnings (see, Matter of Pell v Board of Educ., 34 NY2d 222, 231; Matter of Smith v Board of Educ., 231 AD2d 528; Matter of Moorehead, v New York City Tr. Auth., 147 AD2d 569). Further, the penalty of dismissal in this case is not so disproportionate to the offenses as to be shocking to one’s sense of fairness (see, Matter of Smith v Board of Educ., supra; Matter of Pell v Board of Educ., supra).

We have considered the petitioner’s remaining contentions and find them to be without merit. Sullivan, J. P., Pizzuto, Friedmann and Krausman, JJ., concur.