In the Matter of John M. Starr, Respondent, v Greece Central School District, Appellant.

Decided April 6, 2004

Matter of Scahill v Greece Cent. School Dist., 1 AD3d 909, reversed.

Matter of Starr v Greece Cent. School Dist., 1 AD3d 914, reversed.

APPEARANCES OF COUNSEL

Harris Beach LLP, Pittsford (Edward A. Trevvett of counsel), for appellant.

Chamberlain, D'Amanda, Oppenheimer & Greenfield, Rochester (Michael A. Sciortino of counsel), for respondents.

Memorandum.

In each case, the judgment of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the petition dismissed.

The District's terminations of petitioners, two long-time employees, were based on their misconduct in selling at least 14,000 untaxed cigarettes on school property and using a school vehicle to store the cigarettes. This misconduct, which occurred over several months, involved the misappropriation of work time and a violation of the District's trust and policy. Thus, the District did not abuse its discretion in terminating petitioners' employment as the penalty does not shock judicial conscience (see Matter of Kelly v Safir, 96 NY2d 32, 39-40 [2001]; see also Matter of Pell v Board of Educ., 34 NY2d 222, 233 [1974]).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in memorandum. [*2]

In each case: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment, insofar as appealed from, reversed, etc.