opinion of the court

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs. The commissioner is empowered to substitute his judgment of the proper penalty for that of the hearing panel whose action he was reviewing (Matter of Shurgin v Ambach, 56 NY2d 700). In fixing dismissal as the appropriate penalty, his decision to disregard the testimony of petitioner’s psychiatrist was not arbitrary or capricious, inasmuch as the psychiatrist had commenced treatment after the events' in question and had refused to express any opinion as to petitioner’s functions as a teacher.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.