| Matter of Ammann v Odestick |
| 2010 NY Slip Op 04183 [73 AD3d 915] |
| May 11, 2010 |
| Appellate Division, Second Department |
| In the Matter of Paul Ammann, Petitioner, v MichaelOdestick, as Deputy Commissioner of the Westchester County Department of InformationTechnology, et al., Respondents. |
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Proceeding pursuant to CPLR article 78 to review a determination of the Deputy ChiefInformation Officer of the Westchester County Department of Information Technology datedMay 26, 2009, which adopted the findings and recommendations of a hearing officer dated May9, 2009, made after a hearing, finding the petitioner guilty of misconduct and incompetence, andterminated the petitioner's employment.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, with costs.
Following a disciplinary hearing, the petitioner was found guilty of violating the attendancepolicy of the respondent Westchester County Department of Information Technology, includingleaving work early on numerous dates, without authorization, and being absent from the officeon many dates, without authorization. Upon the hearing officer's recommendation, thepetitioner's employment was terminated. "In order to annul an administrative determination madeafter a hearing, a court must conclude that the record lacks substantial evidence to support thedetermination" (Matter of Ward vJuettner, 63 AD3d 748, 748 [2009]; see Matter of Kelly v Safir, 96 NY2d 32,38 [2001]). A reviewing court "may not weigh the evidence or reject the choice made by [theadministrative agency] where the evidence is conflicting and room for choice exists" (Matterof Berenhaus v Ward, 70 NY2d 436, 444 [1987]; see Matter of Ward v Juettner, 63AD3d at 748; Matter of Morris vCalderone, 49 AD3d 741, 742 [2008]). Here, contrary to the petitioner's contentions, thetestimony of the respondents' witnesses, which the hearing officer credited, together with otherevidence and a finding that the petitioner was generally not credible, constituted substantialevidence to support the determination (see 300 Gramatan Ave. Assoc. v State Div. of HumanRights, 45 NY2d 176, 179-180 [1978]; Matter of Duda v Board of Educ. of Uniondale Union Free SchoolDist., 34 AD3d 580, 581 [2006]; Madry v Veteran, 70 AD2d 930 [1979]).
Moreover, the penalty of termination was not so disproportionate to the offense as to beshocking to one's sense of fairness such that it would "constitut[e] an abuse of discretion as amatter of law" (Matter of Kreisler vNew York City Tr. Auth., 2 NY3d 775, 776 [2004]; see Matter of Kelly v Safir,96 [*2]NY2d at 38; Matter of Gustafson v Town of N. Castle, N.Y., 45 AD3d 766, 767[2007]; Matter of Maher v Cade, 15AD3d 489, 490 [2005]; Madry v Veteran, 70 AD2d at 930-931).
The petitioner's remaining contentions are without merit. Santucci, J.P., Angiolillo,Leventhal and Lott, JJ., concur.