Matter of Anthony Rutkunas v Joseph Stout

Matter of Rutkunas v Stout 2006 NY Slip Op 05643 [31 AD3d 566] July 11, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 20, 2006

In the Matter of Anthony Rutkunas, Petitioner,
v
Joseph Stout et al., Respondents.

—[*1]

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the Westchester County Department of Parks, Recreation, and Conservation, dated February 18, 2005, which adopted the recommendation of a hearing officer dated February 11, 2005, made after a hearing, finding the petitioner guilty of misconduct and terminating his employment as a Senior Maintenance Mechanic I.

Adjudged that the petition is granted, on the law and in the exercise of discretion, without costs or disbursements, to the extent that so much of the determination as imposed a penalty is annulled, the matter is remitted to the Commissioner of the Westchester County Department of Parks, Recreation, and Conservation to impose an appropriate penalty less severe than termination of the petitioner's employment, the petition is otherwise denied, the proceeding is otherwise dismissed on the merits, and the determination is otherwise confirmed.

The determination that the petitioner was guilty of misconduct was supported by substantial evidence (see CPLR 7803 [4]; Matter of Lahey v Kelly, 71 NY2d 135, 140 [1987]; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). However, under the circumstances, including, but not limited to, the petitioner's lack of a prior disciplinary history, minimal prospects of alternative employment, and the devastating impact the sanction of termination imposes on his ability to support his family, the penalty of dismissal was so disproportionate to the offense committed as to be shocking to one's sense of fairness (see Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]; [*2]Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 234 [1974]; Matter of Goudy v Schaffer, 24 AD3d 764 [2005]; Matter of Muraik v Landi, 19 AD3d 697, 698 [2005]; Matter of McDermott v Town Bd. of Town of Patterson, 16 AD3d 509 [2005]; Matter of Schnaars v Copiague Union Free School Dist., 275 AD2d 462 [2000]). Accordingly, we remit the matter to the respondent Commissioner of the Westchester County Department of Parks, Recreation, and Conservation for the imposition of a penalty less severe than termination of the petitioner's employment. Adams, J.P., Goldstein, Luciano and Spolzino, JJ., concur.