Feldman v. New York City Board/Department of Education , 975 N.Y.S.2d 58 ( 2013 )

Judgment, Supreme Court, New York County (Robert E. Torres, J.), entered August 21, 2012, dismissing the proceeding and confirming an arbitration award, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered March 7, 2012, which denied the CFLR article 75 petition seeking to vacate and annul the hearing officer’s award imposing a $1,500 fine for violations of Chancellor’s Regulation A-421, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Adequate evidence in the record supported the hearing officer’s determination that petitioner violated Chancellor’s Regulation A-421 when he made statements such as “hey, baby,” “how you doing baby?,” and “you good baby” on multiple occasions to his underage female student (see Lackow v Department of Educ. [or “Board”] of City of NY., 51 AD3d 563 [1st Dept 2008]). Although petitioner asserts that the complaining witness’s testimony was inconsistent with respect to the specific comments at issue, the hearing officer explicitly found the student credible and found petitioner to be not credible, and such determinations are “largely unreviewable” (see id.).

The hearing officer declined to impose respondent’s requested penalty of termination, in favor of a $1,500 fine to be withdrawn in equal installments from petitioner’s paychecks over a twelve month period. Under the circumstances here, we conclude that the penalty is not so excessive and disproportionate to the offense as to be shocking to one’s sense of fairness (see Matter of Principe v New York City Dept. of Educ., 94 AD3d 431, 433, 434 [1st Dept 2012], affd 20 NY3d 963 [2012]).

We have considered the remainder of petitioner’s arguments and find them unavailing. Concur — Gonzalez, P.J., Tom, Renwick, Freedman and Clark, JJ.