Lewis v. Lipsman

Appellate Division of the Supreme Court of New York

Lewis v. Lipsman

57 A.D.3d 670, 868 N.Y.2d 541

Appellate Division of the Supreme Court of the State of New York·Decided December 9, 2008·Published

Opinion

Contrary to the petitioner’s contention, the determination that she engaged in misconduct is supported by substantial evidence in the record (see Matter of Berenhaus v Ward, 70 NY2d 436 [1987]; Matter of Alexander v New York State Off. of Children & Family Servs., 50 AD3d 895 [2008]). Further, “[a]n administrative penalty must be upheld unless it ‘is so disproportionate to the offense as to be shocking to one’s sense of fairness,’ thus constituting an abuse of discretion as a matter of law” (Matter of Kreisler v New York City Tr. Auth., 2 NY3d 775, 776 [2004], quoting Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 237 [1974]). Here, it cannot be concluded, “as a matter of law, that the penalty [imposed] shocks the judicial conscience” (Matter of Kreisler v New York City Tr. Auth., 2 NY3d at 776; see Matter of Ellis v Mahon, 11 NY3d 754 [2008]; Matter of Torrance v Stout, 9 NY3d 1022 [2008]).

The petitioner’s remaining contentions are without merit. Ritter, J.E, Florio, Miller and Dillon, JJ., concur.

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Contrary to the petitioner’s contention, the determination that she engaged in misconduct is supported by substantial evidence in the record (see Matter of Berenhaus v Ward, 70 NY2d 436 [1987]; Matter of Alexander v New York State Off. of Children & Family Servs., 50 AD3d 895 [2008]). Further, “[a]n administrative penalty must be upheld unless it ‘is so disproportionate to the offense as to be shocking to one’s sense of fairness,’ thus constituting an abuse of discretion as a matter of law” (Matter of Kreisler v New York City Tr. Auth., 2 NY3d 775, 776 [2004], quoting Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 237 [1974]). Here, it cannot be concluded, “as a matter of law, that the penalty [imposed] shocks the judicial conscience” (Matter of Kreisler v New York City Tr. Auth., 2 NY3d at 776; see Matter of Ellis v Mahon, 11 NY3d 754 [2008]; Matter of Torrance v Stout, 9 NY3d 1022 [2008]).

The petitioner’s remaining contentions are without merit. Ritter, J.E, Florio, Miller and Dillon, JJ., concur.

Lewis v. Lipsman, 57 A.D.3d 670, 868 N.Y.2d 541 (N.Y. Ct. App. 2008).

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Opinion

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