
    In the Matter of James Hutchinson, Petitioner, v Emily Lloyd, as Sanitation Commissioner of the City of New York, et al., Respondents.
    [627 NYS2d 46]
   Petition seeking to annul the determination of respondent Commissioner of the Department of Sanitation dated April 12, 1993, finding petitioner guilty of violation of respondent’s Code of Conduct and terminating petitioner as the penalty for his misconduct (transferred to this Court by order of Supreme Court, New York County [Edward H. Lehner, J.], entered May 4, 1994), unanimously granted to the extent of vacating the penalty imposed and remanding the matter to respondent for the imposition of a lesser penalty and the determination is otherwise confirmed, without costs.

In the circumstances, we find the penalty of termination for an altercation with a civilian to be so disproportionate to the offense as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222). The record reflects that the incident was precipitated by the conduct of the complaining civilian. We further note the presence of the complainant’s cousin at the scene. In addition thereto, we find that the petitioner’s pre-rehabilitation dependency related misconduct and absenteeism should not have been taken into account in determining the penalty herein. Concur—Murphy, P. J., Rubin, Kupferman, Asch and Nardelli, JJ.  