Leyden v. Board of Education of North Merrick Union Free School District

175 A.D.2d 835, 573 N.Y.S.2d 303, 1991 N.Y. App. Div. LEXIS 10949

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 12, 1991
• Status: Published

Opinion

— Proceeding pursuant to CPLR article 78 to review a determination of the Board of Education of the North Merrick Union Free School District, dated March 28, 1989, which, after a hearing, dismissed the petitioner from his employment as a custodian.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements.

The petitioner contends that his employment was terminated for excessive absence, primarily resulting from his alcoholism, in violation of Executive Law §§ 296 and 292. The record sufficiently demonstrates, however, that the petitioner was discharged for misconduct arising out of five incidents of theft of services, in addition to his failure to report to work for 15 full days and five half days, and not because of a disability (see, Dicocco v Capital Area Community Health Plan, 135 AD2d 308). Additionally, the petitioner conceded that only some of his absences were alcohol related and further admitted that some of his absences for illness were not legitimate. Bracken, J. P., Eiber, Harwood and Balletta, JJ., concur.