Cite as: Principe v. NYCDOE, No. 240, NYLJ 1202581380251, at *1 (Ct. of App., Decided December 13, 2012)

Chief Judge Lippman and Judges Ciparick, Graffeo, Read and Pigott concur. Judge Smith dissents.

Decided December 13, 2012

Submitted by Julian L. Kalkstein, for appellant.

Submitted by Stuart Lichten, for respondent.

On review of submissions pursuant to section 500.11 of the Rules, order affirmed, with costs, and certified question answered in the affirmative. The Appellate Division correctly determined that the penalty of termination imposed on petitioner was excessive in light of all the circumstances (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, 233 [1974]). Chief Judge Lippman and Judges Ciparick, Graffeo, Read and Pigott concur. Judge Smith dissents and votes to reverse for the reason that it cannot be concluded, as a matter of law, that the penalty of termination shocks the judicial conscience (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, 233 [1974]).