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Waldren v. Town of Islip

6 N.Y.3d 735 Court N.Y. Decision date 2005-12-20 English

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p. 735
[ 843 NE2d 1148, 810 NYS2d 408]
In the Matter of Gary Waldren, Respondent, v Town of Islip, Appellant.
Decided December 20, 2005
p. 736
APPEARANCES OF COUNSEL
Bond, Schoeneck & King, PLLC, Garden City (Ernest R. Stolzer of counsel), for appellant.
Rosenthal Curry & Kranz, LLP, East Meadow (Allen M. Kranz of counsel), for respondent.

OPINION OF THE COURT

The order of the Appellate Division should be reversed, with costs, to the extent that it annulled so much of the Town’s determination as imposed a penalty and remitted for imposition of a less severe penalty, and the petition dismissed.

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 (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester

p. 737
County, 34 NY2d 222 , 237 [1974]). Under the circumstances of this case, it cannot be concluded that the penalty of termination imposed by the Commissioner shocks the judicial conscience. Petitioner’s remaining contentions lack merit.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order, insofar as appealed from, reversed, with costs, and petition dismissed, in a memorandum.

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