MATTER OF HUTCHINSON v. LLOYD

In the circumstances, we find the penalty of termination for an altercation with a civilian to be so disproportionate to the offense as to be shocking to one's sense of fairness ( see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222). The record reflects that the incident was precipitated by the conduct of the complaining civilian. We further note the presence of the complainant's cousin at the scene. In addition thereto, we find that the petitioner's pre-rehabilitation dependency related misconduct and absenteeism should not have been taken into account in determining the penalty herein.

Concur — Murphy, P.J., Rubin, Kupferman, Asch and Nardelli, JJ.