| Matter of Genovese Drug Stores, Inc. v Harper |
| 2008 NY Slip Op 02588 [49 AD3d 735] |
| March 18, 2008 |
| Appellate Division, Second Department |
| In the Matter of Genovese Drug Stores, Inc.,Appellant, v Brian L. Harper et al., Respondents. |
—[*1] Christine Malafi, County Attorney, Hauppauge, N.Y. (Rachel C. Anello and ChristopherGatto of counsel), for respondents.
Proceeding pursuant to CPLR article 78 to review a determination of the respondent Brian L.Harper, M.D., MPH, Commissioner of the Department of Health Services, County of Suffolk,dated June 16, 2006, which affirmed three decisions of a hearing officer of the Department ofHealth Services, County of Suffolk, each dated April 18, 2006, made after hearings, finding thatthe petitioner violated Public Health Law § 1399-cc (3) at three of its individual stores byselling cigarettes to minors, and imposed a penalty.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, with costs.
Judicial review of an administrative determination made after a hearing required by law islimited to whether that determination is supported by substantial evidence (see Matter ofJennings v New York State Off. of Mental Health, 90 NY2d 227, 239 [1997]). Substantialevidence has been defined as "such relevant proof as a reasonable mind may accept as adequateto support a conclusion or ultimate fact" (300 Gramatan Ave. Assoc. v State Div. of HumanRights, 45 NY2d 176, 180 [1978]). Moreover, " '[t]he courts may not weigh the evidence orreject the choice made by [an administrative agency] where the evidence is conflicting and roomfor choice exists' " (Matter of Berenhaus v Ward, 70 NY2d 436, 444 [1987], quotingMatter of Stork Rest. v Boland, 282 NY 256, 267 [1940]).
Here, the respondent Department of Health Services, Suffolk County (hereinafter the DOH)[*2]presented the testimony of several investigators, who testifiedthat, during the course of three separate "sting" operations, they personally witnessed thepetitioner's employees sell cigarettes to persons they knew to be under the age of 18. The DOHfurther submitted the birth certificates of the three minors involved, as proof that they were underthe age of 18 at the time of the transactions. Contrary to the petitioner's contention, thisconstituted substantial evidence that the petitioner violated Public Health Law § 1399-cc(3) (cf. Matter of Hoch v New YorkState Dept. of Health, 1 AD3d 994 [2003]).
The petitioner's remaining contentions are without merit. Skelos, J.P., Lifson, Santucci andBalkin, JJ., concur.