Decided December 20, 2005

Matter of Waldren v Town of Islip, 18 AD3d 566, reversed.

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.

Memorandum.

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