
    In the Matter of Kenneth Smith, Petitioner, v Board of Education of the Yonkers City School District et al., Respondents.
    [647 NYS2d 99]
   Proceeding pursuant to CPLR article 78 to review a determination of the respondent Superintendent of the Yonkers Public Schools dated June 12, 1995, which, after a hearing, found the petitioner guilty of the charges against him.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

The record supports the respondents’ determination that the petitioner’s performance as a custodial employee in one of the respondents’ schools was poor and that he failed to improve his work despite oral and written warnings. The record also sufficiently demonstrated the petitioner’s excessive absences. Moreover, under the circumstances of this case, the penalty of dismissal is not shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233).

We have considered the petitioner’s remaining contentions and find them to be without merit. Rosenblatt, J. P., Santucci, Joy and Hart, JJ., concur.  