Desser v. County of Dutchess

251 A.D.2d 577, 673 N.Y.S.2d 603, 1998 N.Y. App. Div. LEXIS 7506

Opinion

—Proceeding pursuant to CPLR article 78 to review a determination of the respondent County of Dutchess, dated February 10, 1997, which adopted the recommendation of a Hearing Officer, made after a hearing, finding that the petitioner was guilty of misconduct, and imposed the penalty of 30 days suspension without pay from his position as a Senior Engineering Aid.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

The respondent’s determination was supported by substantial evidence (see, Matter of Lahey v Kelly, 71 NY2d 135; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176). It is the function of the administrative agency or the Hearing Officer, not the reviewing court, to weigh the evidence and assess the credibility of the witnesses (see, Matter of Silherfarb v Board of Coop. Educ. Servs. Supervisory Dist., 60 NY2d 979, 981). This record provides no basis to disturb the Hearing Officer’s determination that the petitioner committed the acts specified in the charge.

Further, the penalty of 30 days suspension without pay was not so disproportionate to the offenses committed as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222). Rosenblatt, J. P., Miller, Ritter and Goldstein, JJ., concur.