| Matter of Morris v Calderone |
| 2008 NY Slip Op 02595 [49 AD3d 741] |
| March 18, 2008 |
| Appellate Division, Second Department |
| In the Matter of Rodderick Morris, Petitioner, v Louis J.Calderone, Respondent. |
—[*1] Christine Malafi, County Attorney, Hauppauge, N.Y. (Chris P. Termini of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner ofthe Department of Public Works, County of Suffolk, dated August 17, 2006, which adopted therecommendation of a hearing officer, made after a hearing, finding the petitioner guilty of certainenumerated charges and specifications, and terminated his employment as a wastewater treatmentplant helper.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, with costs.
The respondent terminated the petitioner's employment, effective August 28, 2006, after adisciplinary hearing pursuant to Civil Service Law § 75. The hearing officer found thepetitioner guilty of four specifications of misconduct relating to insubordination andunauthorized absences, and recommended termination. The petitioner commenced this CPLRarticle 78 proceeding challenging his termination, contending that the findings of guilt were notsupported by substantial evidence and that the penalty imposed was overly harsh. We disagreeand accordingly dismiss the proceeding.[*2]
To annul an administrative determination made after ahearing, a court must conclude that the determination is not supported by substantial evidence(see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale& Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]; Matter of Isaksson-Wilder v New YorkState Div. of Human Rights, 43 AD3d 921, 922 [2007]). The petitioner's contention thatthe determination is not supported by substantial evidence is without merit. The testimony of therespondent's two witnesses, and other documents admitted into evidence, established the factsnecessary to sustain the charges. The hearing officer, before whom all the witnesses appeared,credited the testimony of the respondent's witnesses and not the testimony of the petitioner andhis witness. A reviewing court may not weigh the evidence or reject the choice made by thehearing officer where there is conflicting evidence and room for choice exists (see Matter ofBerenhaus v Ward, 70 NY2d 436, 443-444 [1987]; Matter of Collins v Codd, 38NY2d 269, 270-271 [1976]).
Further, the penalty imposed was not so disproportionate to the offenses committed as to beshocking to one's sense of fairness (see Matter of Turner v Simpson, 60 NY2d 959, 961[1983]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns ofScarsdale & Mamaroneck, Westchester County, 34 NY2d at 233).
The petitioner's remaining contentions are without merit. Fisher, J.P., Dillon, McCarthy andBelen, JJ., concur.