The opinion
In a proceeding pursuant to CPLR article 78 to review a determination of the appellant New York City Board of Education dated July 21, 1989, made after a hearing, finding the petitioner guilty of various acts of misconduct and recommending that he be dismissed from his position as a tenured teacher, the appeal, by permission, is from a judgment of the Supreme Court, Kings County (Greenstein, J.), dated July 11, 1990, which annulled the determination insofar as it imposed the penalty of dismissal and remitted the matter for the imposition of a lesser penalty.
Ordered that the judgment is reversed, on the law, with costs, and the determination of the appellant New York City Board of Education is reinstated in its entirety.
The petitioner did not seek review of the issue of whether there was substantial evidence to support the findings of guilt as to the charges lodged against him, and alleged only that the penalty of dismissal was improper. The Supreme Court agreed and remitted the matter to the appellant New York City Board of Education for the imposition of a lesser penalty. We find that this penalty, while obviously severe, is not, under all the circumstances, so disproportionate to the offenses in question as to shock one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222 , 233). Significantly, the hearing panel found that the petitioner had failed to improve his performance despite many warnings and opportunities to do so and that he would not improve his skills if permitted to return to work (see, Mongitore v Regan, 133 AD2d 815 ; Matter of Carlan v Board of Educ., 128 AD2d 706 ). Balletta, J. P., Eiber, O’Brien and Santucci, JJ., concur.