| Matter of Thomas v County of Rockland, Dept. of Hosps. |
| 2008 NY Slip Op 07924 [55 AD3d 745] |
| October 14, 2008 |
| Appellate Division, Second Department |
| In the Matter of Annamma Thomas, Appellant, v County ofRockland, Department of Hospitals, Respondent. |
—[*1] Patricia Zugibe, County Attorney, New City, N.Y. (Jeffrey J. Fortunato of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 to review a determination of the County of Rockland,Department of Hospitals, dated September 14, 2006, which adopted the recommendation of a hearingofficer dated September 6, 2006 made after a hearing, finding the petitioner guilty of misconduct, andterminated her employment.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, with costs.
On November 12, 2005 a patient of Summit Park Hospital, where the petitioner worked as alicensed registered nurse, was discovered to be nonresponsive. The shift supervisor called a "codeblue" and the petitioner and several other nurses responded. The petitioner subsequently was accusedof failing to put the defibrillator on the proper setting, causing defibrillator treatment to be needlesslydelayed, and failing to report her alleged error. The patient could not be revived and died. Theseallegations resulted in two charges of misconduct: (1) failure to follow proper procedures, and (2)failure to report. By determination dated September 14, 2006, the Acting Commissioner of Hospitalsfor the County of Rockland adopted all of the findings of fact and conclusions of law made by thehearing officer and found the petitioner guilty of both charges. The determination also adopted therecommendation of the hearing officer as to the penalty of termination, and terminated the petitioner'semployment.[*2]
"The review of administrative determinations in employeedisciplinary cases made as a result of a hearing required by Civil Service Law § 75 is limited to aconsideration of whether the determination is supported by substantial evidence" (Matter of Mann v Town of Monroe, 2AD3d 527, 528 [2003]). "Moreover, it is the function of the administrative agency or the HearingOfficer, not the reviewing court, to weigh the evidence or assess the credibility of witnesses anddetermine which testimony to accept and which to reject" (Matter of Sahni v New York City Bd. ofEduc., 240 AD2d 751 [1997]; seeMatter of Duda v Board of Educ. of Uniondale Union Free School Dist., 34 AD3d 580, 581[2006]). "An administrative penalty must be upheld unless it 'is so disproportionate to the offense as tobe shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law" (Matter of Kreisler v New York City Tr.Auth., 2 NY3d 775, 776 [2004], quoting Matter of Pell v Board of Educ. of Union FreeSchool Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222,237 [1974]). Here, the determination that the petitioner, a nurse, committed misconduct by failing toproperly utilize a defibrillator machine during a "code blue," is supported by substantial evidence. Inaddition, it cannot be concluded, "as a matter of law, that the penalty of [termination] shocks the judicialconscience" (Matter of Kreisler v New York City Tr. Auth., 2 NY3d at 776; see Matter ofPell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck,Westchester County, 34 NY2d at 240; see also Matter of Ellis v Mahon,11 NY3d 754 [2008]; Matter of Torrance v Stout, 9 NY3d1022, 1023 [2008]). Skelos, J.P., Covello, Balkin and Dickerson, JJ., concur.