
    In the Matter of Kenneth Weinstein, Respondent-Appellant, v Department of Education of the City of New York, Appellant-Respondent.
    [798 NYS2d 383]
   Judgment, Supreme Court, New York County (Sheila AbdusSalaam, J.), entered January 16, 2004, which, in a proceeding pursuant to Education Law § 3020-a (5) and CPLR 7511 to vacate an impartial hearing officer’s determination, dated March 6, 2003, finding that petitioner teacher committed corporal punishment and that there is just cause for terminating his employment, granted the petition to the extent of remanding the matter to respondent for imposition of a lesser penalty and denied respondent’s cross motion to dismiss the petition, unanimously modified, on the law, to grant the petition in its entirety, vacate the determination, and reinstate petitioner with back pay and benefits, and otherwise affirmed, without costs.

Whatever the applicable standard of review in a compulsory arbitration proceeding, there is no rational basis in the evidence adduced for a finding that petitioner, a teacher with a 30-year history of exemplary service in the teaching profession, improperly used physical force against the complainant in violation of the regulations of the now Department of Education.

Even if there were any support for such a finding, under the circumstances, where petitioner was carrying out his assigned duty of denying access to a locker room to all but gym class students, we would agree with Supreme Court that the penalty imposed was excessive and shocking to one’s conscience. Concur—Andrias, J.P., Saxe, Friedman, Marlow and Nardelli, JJ.  