Ross v. Oxford Academy & Central School District

187 A.D.2d 898, 590 N.Y.S.2d 552, 1992 N.Y. App. Div. LEXIS 13464

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 25, 1992
• Status: Published

Opinion

Crew III, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chenango County) to review a determination of respondent which terminated petitioner’s employment as a school bus driver.

Respondent found petitioner guilty of, inter alia, using physical force on four students assigned to the bus he was driving in violation of 8 NYCRR 19.5 and 100.2 (l) (3) as well as respondent’s policies. Upon our review of the record, we find this determination to be supported by substantial evidence. In this regard, we note that although there was conflicting testimony, it was for respondent to assess matters of credibility (see, Matter of Ronkese v Board of Educ., 82 AD2d 1011). As to the penalty, however, the evidence revealed that petitioner had been driving for respondent for 15 years and his most recent evaluation revealed that he used good judgment in his work and that he displayed continued enthusiasm and responsibility for the students. Given that and the uncontradicted evidence of the difficult nature of the children involved in the instant proceeding, we believe that the penalty of dismissal is so disproportionate to the offense as to be shocking to one’s sense of fairness (see, Matter of Borkhuis v Quinn, 158 AD2d 917). Accordingly, the matter should be remitted to respondent for imposition of an appropriate sanction.

Mikoll, J. P., Mahoney, Casey and Harvey, JJ., concur. Adjudged that the determination is modified, without costs, by annulling the penalty imposed; matter remitted to respondent for further proceedings not inconsistent with this Court’s decision; and, as so modified, confirmed.