Tomczak v. Bd. of Educ.

144 A.D.3d 1165

42 N.Y.S.3d 311

2016 N.Y. Slip Op. 08083

In the Matter of Jameson TOMCZAK, petitioner/respondent,

v.BOARD OF EDUCATION, Eastchester Union Free School District, respondent/appellant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 30, 2016.

Charny & Associates, Rhinebeck, NY (Russell G. Wheeler of counsel), for petitioner/respondent.

Keane & Beane, P.C., White Plains, NY (William Kang of counsel), for respondent/appellant.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.

Proceeding pursuant to CPLR article 78 to review a determination of the Board of Education, Eastchester Union Free School District, dated December 10, 2013, which, after a hearing, confirmed the removal of the petitioner from his position as head custodian of the Anne Hutchinson School, which proceeding was transferred to this Court by order of the Supreme Court, Westchester County (Zuckerman, J.), dated August 14, 2014, and appeal by the Board of Education, Eastchester Union Free School District, from stated portions of the same order.

ORDERED that the appeal is dismissed, as no appeal lies as of right from an interlocutory order entered in a proceeding pursuant to CPLR article 78 (see CPLR 5701[b][1] ), and we decline to grant leave to appeal; and it is further,

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits; and it is further,

ORDERED that one bill of costs is awarded to the Board of Education, Eastchester Union Free School District.

The petitioner commenced this CPLR article 78 proceeding in the Supreme Court, Westchester County, to review a determination by the Board of Education, Eastchester Union Free School District (hereinafter the school district), confirming his removal from the position of head custodian at a school. By order dated August 14, 2014, the Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804(g). The petition, however, only sought review of the penalty imposed and did not raise issues of substantial evidence (see Matter of Shane v. New York State Dept. of State Div. of Licensing Servs.,

135 A.D.3d 866, 866, 23 N.Y.S.3d 377 ; Matter of Ottley v. New York City Hous. Auth., 106 A.D.3d 741, 744, 964 N.Y.S.2d 228 ). Accordingly, transfer of the proceeding to this Court was not warranted (see CPLR 7804[g] ). However, 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 (see Matter of Halperin v. City of New Rochelle, 24 A.D.3d 768, 772–773, 809 N.Y.S.2d 98 ).

“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 Idahosa v. Farmingdale State Coll., 97 A.D.3d 580, 581, 948 N.Y.S.2d 104 ; see Matter of Kreisler v. New York City Tr. Auth., 2 N.Y.3d 775, 776, 780 N.Y.S.2d 302, 812 N.E.2d 1250 ). In other words, both the Supreme Court and this Court “lack[ ] any discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed” (Matter of Featherstone v. Franco, 95 N.Y.2d 550, 554, 720 N.Y.S.2d 93, 742 N.E.2d 607 ). “[A] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it...