Desser v. County of Dutchess

Appellate Division of the Supreme Court of New York

Desser v. County of Dutchess

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 22, 1998

StatusPublished

This text of 251 A.D.2d 577 (Desser v. County of Dutchess) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Desser v. County of Dutchess, 251 A.D.2d 577, 673 N.Y.S.2d 603, 1998 N.Y. App. Div. LEXIS 7506 (N.Y. Ct. App. 1998).

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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.

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—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.

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Bluebook (online)

251 A.D.2d 577, 673 N.Y.S.2d 603, 1998 N.Y. App. Div. LEXIS 7506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/desser-v-county-of-dutchess-nyappdiv-1998.

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