Friday, December 02, 2016

An Article 78 petition seeking the review of the disciplinary penalty imposed on an employee must raise an issue of substantial evidence to warrant Supreme Court’s transfer of the proceeding to the Appellate Division.


An Article 78 petition seeking the review of the disciplinary penalty imposed on an employee must raise an issue of substantial evidence to warrant Supreme Court’s transfer of the proceeding to the Appellate Division.

However, said the Appellate Division, “because the full record is now before this Court, this Court will retain jurisdiction to decide the proceeding on the merits in the interest of judicial economy.”

The Appellate Division then ruled that “Under the circumstances presented here, the penalty of dismissal from the petitioner's employment with the school district was not so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion,” explaining "An 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" and neither the Supreme Court nor the Appellate Division have any discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed.

The test applied: Is the penalty imposed “shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals," the so-called Pell standard [Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222].

Reported: 2016 NY Slip Op 08083, Appellate Division, Second Department


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