
    (October 8, 1998)
    In the Matter of Michael Kennedy, Petitioner, v Howard Safir, as Police Commissioner of City of New York, et al., Respondents.
    [679 NYS2d 279]
   —Determination of respondent Police Commissioner dated August 29,1996, dismissing petitioner from his position as a police officer, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Richard Lowe, III, J.], entered July 3, 1997), dismissed, without costs.

Respondents established by substantial and uncontradicted evidence that, in the course of an integrity test, petitioner performed an illegal search and used excessive force in an assault upon an undercover police officer. In light of the proven misconduct, we do not find respondent’s dismissal of petitioner a disproportionate penalty, much less one that shocks our sense of fairness (see, Pell v Board of Educ., 34 NY2d 222, 233). Concur — Sullivan, J. P., Rubin, Tom and Saxe, JJ.  