Blakes v. Jacobson

Judgment, Supreme Court, New *291York County (Stephen Crane, J.), entered May 11, 1998, which, in a proceeding brought pursuant to CPLR article 78 to annul respondent’s determination dismissing petitioner from his position as a correction officer, confirmed the determination and dismissed the proceeding, unanimously affirmed, without costs.

Given the gravity of the admitted misconduct, we do not find the sanction imposed so disproportionate to the offense as to shock our sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222, 232-233). Petitioner’s claim, that the off-duty conduct for which he was disciplined is not actionable under department disciplinary guidelines, is waived since it was not raised in his petition or in the ensuing administrative proceedings. In any event, the claim lacks merit (see, Matter of Fox v Finnerty, 62 NY2d 796, revg 96 AD2d 905). Concur — Nardelli, J. P., Lerner, Mazzarelli and Saxe, JJ.