Sunrise Manor Center for Nursing & Rehabilitation ex rel. Gronert v. Novello

Jun 6, 2005
Versions:19 A.D.3d 426
796 N.Y.S.2d 142
2005 N.Y. App. Div. LEXIS 6029

Proceeding pursuant to CPLR article 78 to review a determination of the respondents, dated August 1, 2003, which, after a hearing, found the petitioner guilty of misconduct and/or incompetence, and terminated her employment with the Westchester Medical Center.

Adjudged that the petition is granted, on the law and as a matter of discretion, without costs or disbursements, to the extent that the penalty imposed is vacated, the petition is otherwise denied, the determination is otherwise confirmed, and the proceeding is otherwise dismissed on the merits, and the matter is remitted to the respondents for the imposition of a penalty less severe than termination of employment.

Contrary to the petitioner‘s contention, upon our review of the record we find that there was substantial evidence to support so much of the respondents’ determination as found the petitioner guilty of misconduct and/or incompetence (see Matter of Berenhaus v Ward, 70 NY2d 436 [1987]; 300 Gramatan Ave. Assoc. v State Div. Human Rights, 45 NY2d 176 [1978]). However, the punishment imposed was so disproportionate to the misconduct as to be shocking to one‘s sense of fairness (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 [1974]).

The petitioner‘s remaining contentions are without merit.

H. Miller, J.P., Ritter, Goldstein and Spolzino, JJ., concur.