
    [982 NE2d 88, 958 NYS2d 325]
    In the Matter of Peter Principe, Respondent, v New York City Department of Education, Appellant.
    Decided December 13, 2012
    
      APPEARANCES OF COUNSEL
    
      Michael A. Cardozo, Corporation Counsel, New York City (Julian L. Kalkstein of counsel), for appellant.
    
      Lichten & Bright, PC, New York City (Stuart Lichten of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), 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]).

Concur: Chief Judge Lippman and Judges Cipakick, Graffeo, Read and Pigott. 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]).  