MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court, New York County, with instructions to remand to the New York City Civil Service Commission for imposition of an appropriate penalty.
Appellant McCormick was dismissed from his job as a New York City Sanitation Department employee for violations of departmental sick leave policies. The New York City Civil Service Commission, reviewing the penalty pursuant to Civil Service Law § 76, modified the penalty of dismissal to a 44-day suspension. The rule, expressed in Matter of City Council v Carbone ( 54 A.D.2d 461), allows a court reviewing the decision of a civil service commission to reverse only if the modification of the penalty by the commission is "`so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness'" (see, Matter of Pell v Board of Educ., 34 N.Y.2d 222, 233). Under the circumstances, the modification of the penalty by the New York City Civil Service Commission was so lenient as to require reversal (see, Matter of Riforgiato v Board of Educ., 86 A.D.2d 757). The matter should be returned to the New York City Civil Service Commission for imposition of an appropriate penalty (see, Rob Tess Rest. Corp. v New York State Liq. Auth., 49 N.Y.2d 874; Matter of Harris v Mechanicville Cent. School Dist., 45 N.Y.2d 279).
Chief Judge WACHTLER and Judges MEYER, SIMONS, ALEXANDER, TITONE and HANCOCK, JR., concur in memorandum; Judge KAYE taking no part.
Order reversed, etc.