Judgment, Supreme Court, New York County (Saralee Evans, J.), entered October 14, 2003, which, in a proceeding to annul respondent Civil Service Commission’s affirmance of respondent Department of Sanitation’s termination of petitioner’s employment upon findings that he attempted to steal supplies intended for rescue workers at the World Trade Center site, granted respondents’ motion to dismiss the proceeding for failure to state a cause of action, unanimously affirmed, without costs.
The Commission’s determination is not judicially reviewable in the absence of allegations implicating a constitutional right, or sufficient to show that the Commission acted illegally, unconstitutionally or in excess of its jurisdiction (Matter of New York City Dept. of Envtl. Protection v New York City Civ. Serv. Commn., 78 NY2d 318, 323-324 [1991]). In any event, the penalty of dismissal does not shock our sense of fairness (cf. Matter of Alfieri v Murphy, 38 NY2d 976, 977 [1976]). Concur— Andrias, J.P., Sullivan, Ellerin, Lerner and Marlow, JJ.