| Matter of Venditti v New York State Dept. of Envtl. Conservation |
| 2008 NY Slip Op 09808 [57 AD3d 685] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mIn the Matter of Anthony Venditti et al., Petitioners, v NewYork State Department of Environmental Conservation, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Benjamin N. Gutman, Monica Wagner,Norman Spiegel, and Lisa Feiner of counsel), for respondent.
Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of theNew York State Department of Environmental Conservation dated August 7, 2007, which, uponadopting, in part, the findings and conclusions of an Administrative Law Judge, made after a hearing,that the petitioners violated the Freshwater Wetlands Act (ECL art 24) and 6 NYCRR 663.4, imposeda penalty upon the petitioners, and directed them to submit a restoration plan to the New York StateDepartment of Environmental Conservation.
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, and atwhich evidence is taken, is limited to whether that determination is supported by substantial evidence(see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179 [1978]).Substantial evidence "means such relevant proof as a reasonable mind may accept as adequate tosupport a conclusion or ultimate fact" (id. at 180; see Matter of Steward v Mulligan, 47 AD3d 822, 823 [2008]; Matter of Lynnann P. v Suffolk County Dept. ofSocial Servs., 28 AD3d 484, 485 [2006]). " 'In the final analysis, it is not the function of thereviewing court to weigh the evidence or substitute its own judgment for that of an administrative bodyto whose expertise a subject matter has been entrusted, but rather to determine whether there is a"reasonable fulcrum of support in the record" to sustain the [*2]body'sfindings' " (Matter of Bradley Corporate Parkv Crotty, 39 AD3d 632, 634 [2007], quoting Matter of Furey v County of Suffolk,105 AD2d 41, 43 [1984]).
Here, the respondent's determination that the petitioners violated the Freshwater Wetlands Act(see ECL art 24) by performing certain activities on land officially designated as a freshwaterwetland and on adjacent land within 100 feet thereof, without the required permit, is supported bysubstantial evidence. In addition, it cannot be concluded as a matter of law that the respondent'sdetermination to order the petitioners to perform restoration to the extent possible "is sodisproportionate to the offense as to be shocking to one's sense of fairness" (Matter of Waldren v Town of Islip, 6 NY3d735, 736 [2005], quoting Matter of Pell v Board of Educ. of Union Free School Dist. No. 1of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 237 [1974]; see Matter of Rutkunas v Stout, 8 NY3d897, 899 [2007]).
The petitioners' remaining contentions are without merit. Spolzino, J.P., Carni, Eng and Leventhal,JJ., concur.