Crest Manor Nursing Home v. Perales

144 A.D.2d 981, 535 N.Y.S.2d 568, 1988 N.Y. App. Div. LEXIS 14484

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1988
• Status: Published

Opinion

Order insofar as appealed from unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: We treat this appeal as one from an order settling the record (CPLR 5701 [a] [2] [ii]), and we modify the order transferring this proceeding to our court pursuant to CPLR 7804 (g) by striking therefrom any reference to the affidavit of Edward W. Cavanaugh, sworn to on January 6, 1988. The Cavanaugh affidavit was not before the administrative agency when the underlying determination was made and may not be included in the record to be transferred to this court. Judicial review of a determination of an administrative agency is limited to the record before the agency when it rendered its determination (see, Matter of Fanelli v New York City Conciliation & Appeals Bd., 90 AD2d 756, affd 58 NY2d 952). (Appeal from order of Supreme Court, Monroe County, Tillman, J. — settle record.) Present — Dillon, P. J., Callahan, Boomer, Balio and Lawton, JJ.