Barrett v. D'Elia

102 A.D.2d 890, 477 N.Y.S.2d 62, 1984 N.Y. App. Div. LEXIS 19118

Opinion

— Proceeding pursuant to CPLR article 78 to review a determination of respondents dated April 20, 1982, which, after a hearing, found petitioner guilty of misconduct and terminated her employment. 11 Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. H Petitioner objects, based on the best evidence rule, to the introduction in evidence at the hearing of her personnel benefit record. Petitioner was required to sign in at work daily. The sheet used to sign in required the time of signing in to be noted. A weekly summary of the daily sign-in sheets was prepared by a unit clerk and signed by a supervisor, who certified the accuracy of the summary. The summary was then forwarded to the personnel office where the information was transferred to the employee’s attendance card, which was known as the personnel benefit record, f Business summaries have been deemed to be independent from the writings or documents upon which they are drawn {R & I Electronics v Neuman, 81 AD2d 832, mot for lv to app den 54 NY2d 605). Moreover, the rules of evidence are not binding in administrative proceedings (State Administrative Procedure Act, § 306, subd 1). H Respondents’ determination as to petitioner’s misconduct is supported by substantial evidence (see 300 Gramatan Ave. Assoc, v State Div. of Human Rights, 45 NY2d 176). Furthermore, the penalty imposed (termination of employment) was not so disproportionate to the offense as to be shocking to one’s sense of fairness (see Matter of Pell v Board ofEduc., 34 NY2d 222; Matter of Santarella v New York City Dept, of Correction, 53 NY2d 948). Gibbons, J. P., Brown, Niehoff and Boyers, JJ., concur.