           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

897
TP 11-00294
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.


IN THE MATTER OF CRAIG J. EMMERLING, PETITIONER,

                      V                              MEMORANDUM AND ORDER

TOWN OF RICHMOND, RESPONDENT.


CHRISTINA A. AGOLA, PLLC, ROCHESTER (CHRISTINA A. AGOLA OF COUNSEL),
FOR PETITIONER.

KENYON & KENYON LAW FIRM, CANANDAIGUA (EDWARD C. KENYON OF COUNSEL),
FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Ontario County [William F.
Kocher, A.J.], dated August 10, 2010) to review a determination of
respondent. The determination, among other things, terminated
petitioner’s employment with respondent.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination, made after a hearing pursuant to
Civil Service Law § 75, to terminate his employment as a Recreational
Specialist for respondent. According to petitioner, the determination
is not supported by substantial evidence (see CPLR 7803 [4]), and he
further contends that the penalty of termination constitutes an abuse
of discretion (see CPLR 7803 [3]). Upon our review of the record, we
conclude that substantial evidence supports the determination that
petitioner, whose duties involved extensive contact with children and
who had been notified that he was required to act as a role model for
them, committed misconduct within the meaning of Civil Service Law §
75 by selling an alcoholic beverage to a minor in violation of Penal
Law § 260.20 (2) (see generally 300 Gramatan Ave. Assoc. v State Div.
of Human Rights, 45 NY2d 176, 180-181). Furthermore, the penalty of
termination is not so disproportionate to the offense, in light of all
of the circumstances, as to shock one’s sense of fairness (see Matter
of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of
Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 234-235; see
also Matter of Scahill v Greece Cent. School Dist., 2 NY3d 754).

Entered:    September 30, 2011                     Patricia L. Morgan
                                                   Clerk of the Court
