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IN THE MATTER OF HUGH McKINNON, APPELLANT, v. BOARD OF EDUCATION OF NORTH BELLMORE UNION FREE SCHOOL DISTRICT, ET AL., RESPONDENTS.

DECISION, ORDER JUDGMENT

ORDERED that the appeal is dismissed, and the order and judgment is vacated, on the law, without costs or disbursements; and it is further,

ADJUDGED that the determination is confirmed, and the proceeding is dismissed on the merits, without costs or disbursements.

Since the petition raises a substantial evidence question, and the remaining points raised in the petition are not objections that could have terminated the proceeding within the meaning of CPLR 7804(g), the Supreme Court should have transferred the entire proceeding to the Appellate Division. Nonetheless, since the record is now before us, we will treat the proceeding as if it had been properly transferred, and review the matter de novo (see, Matter of Sweeney v. Barrios-Paoli, 266 A.D.2d 398; Matter of Stein v. County of Rockland, 259 A.D.2d 552).

There is substantial evidence in the record to support the misconduct charges against the petitioner based on his failure to comply with the established call-in procedure to report his absences (see, Matter of Kagha v. Carter, 214 A.D.2d 928). In addition, there is substantial evidence to support the charge of incompetence based on the petitioner's excessive absences, even though the validity of the reasons for his absences was not contested (see, Matter of Garayua v. Board of Educ. of Yonkers City School Dist., 248 A.D.2d 714; Romano v. Town Bd. of Town of Colonie, 200 A.D.2d 934).

We do not find the penalty of dismissal to be so disproportionate to the misconduct as to be "shocking to one's sense of fairness" (Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 233-234; see also, Matter of Garayua v. Board of Educ. of Yonkers City School Dist., supra; Romano v. Town Bd. of Town of Colonie, supra).

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IN RE McKINNON v. BE OF NORTH BELLMORE
(Jun 5, 2000)