| Matter of Roth v Manhasset Union Free School Dist. |
| 2009 NY Slip Op 01807 [60 AD3d 771] |
| March 10, 2009 |
| Appellate Division, Second Department |
| In the Matter of Jeffrey S. Roth, Appellant, v ManhassetUnion Free School District, Respondent. |
—[*1] Frazer & Feldman, LLP, Garden City, N.Y. (Laura A. Ferrugiari of counsel), forrespondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the ManhassetUnion Free School District dated October 13, 2006, which adopted the recommendation of ahearing officer dated September 19, 2006, made after a hearing, finding the petitioner guilty ofcertain charges of misconduct and incompetence and terminated his employment as anaudiovisual technician, the appeal is from a judgment of the Supreme Court, Nassau County(LaMarca, J.), dated September 4, 2007, which denied the petition and dismissed the proceeding.
Ordered that the appeal is dismissed and the judgment is vacated; and it is further,
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits; and it is further,
Ordered that one bill of costs is awarded to the respondent.
Since the petition raises a substantial evidence question, the Supreme Court should havetransferred the proceeding to this Court (see CPLR 7804 [g]). Nevertheless, since therecord is now before us, we will treat the proceeding as if it had been properly transferred, andreview the proceeding de novo (seeMatter of Patterson v State of N.Y. Off. of Children & Family Servs., 34 AD3d 684[2006]; Matter of Weingarten v CrimeVictims Bd., 22 AD3d 763 [2005]; Matter of Tutuianu v New York State, 22 AD3d 503 [2005];Matter of Lynch v Coughlin, 198 AD2d 889 [1993]).[*2]
The petitioner, Jeffrey S. Roth, an audiovisual technicianfor the respondent Manhasset Union Free School District, was charged with various acts ofmisconduct, including, among other things: making false or misleading statements with respectto his employment status with the respondent; physically threatening other employees of therespondent; making inappropriate comments of a sexual nature to students; attempting to impedeinvestigations by the respondent; failing to perform his job responsibilities with respect to aschool assembly; and failing to follow lawful directives of his immediate supervisor directinghim to refrain from being alone with students. Following a hearing, the petitioner was foundguilty of 14 of the 16 charges.
"The review of administrative determinations in employee disciplinary cases made as aresult of a hearing required by Civil Service Law § 75 is limited to a consideration ofwhether the determination is supported by substantial evidence" (Matter of Thomas v County of Rockland,Dept. of Hosps., 55 AD3d 745, 745-746 [2008], quoting Matter of Mann v Town of Monroe, 2AD3d 527, 528 [2003]). Substantial evidence has been defined as "such relevant proof as areasonable mind may accept as adequate to support a conclusion or ultimate fact" (People exrel. Vega v Smith, 66 NY2d 130, 139 [1985], quoting 300 Gramatan Ave. Assoc. v StateDiv. of Human Rights, 45 NY2d 176, 180 [1978]). "Moreover, it is the function of theadministrative agency or the Hearing Officer, not the reviewing court, to weigh the evidence orassess the credibility of witnesses and determine which testimony to accept and which to reject"(Matter of Duda v Board of Educ. ofUniondale Union Free School Dist., 34 AD3d 580, 581 [2006], quoting Matter ofSahni v New York City Bd. of Educ., 240 AD2d 751 [1997]).
The determination under review is supported by substantial evidence. In addition, "theimposed penalty of dismissal was not so disproportionate to the offense as to be shocking toone's sense of fairness" or shocking to the judicial conscience (Matter of Duda v Board ofEduc. of Uniondale Union Free School Dist., 34 AD3d at 581; see Matter of Ellis v Mahon, 11 NY3d754, 755 [2008]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 ofTowns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 [1974]).
The petitioner's remaining contentions are without merit. Fisher, J.P., Covello, Angiolilloand Dickerson, JJ., concur.