The opinion
In this CPLR article 78 proceeding transferred to this court for review, the determination of the Board of Higher Education of the City of New York, made after a hearing, finding petitioner, a nontenured assistant professor at La Guardia Community College,, guilty of conduct unbecoming a member of the staff in that during two academic years he was engaged outside the university for more than one day during the week or its equivalent in violation of the university’s regulations and did not disclose the nature of his outside employment, and imposing the penalty of removal from the instructional staff, modified, on the law, to vacate the penalty of dismissal and the matter remanded for imposition of a lesser penalty, and otherwise confirmed, without costs and without disbursements. The petitioner had received a favorable rating as an assistant professor during the period when it was alleged that he had the excessive outside employment. He was an assistant professor of data process *673 ing, and also worked at a bank in that capacity as outside employment. The bank carried him on the basis of a weekly employee, although it appears that he was in compliance with the regulation that he average no more than "one day a week or its equivalent” in outside employment. There was no evidence that the petitioner neglected his classes or his students, and the determination of dismissal is clearly excessive under the circumstances. There should be an adjustment of the penalty. (Matter of Feldstein v Appleby 65 AD2d 720 ; Matter of Santora v D’Elia, 47 AD2d 634 .) Concur— Kupferman, J. P., Birns and Markewich, JJ.