Friscia v. Kelly

Appellate Division of the Supreme Court of New York

Friscia v. Kelly

51 A.D.3d 451, 856 N.Y.S.2d 110

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

DecidedMay 6, 2008

StatusPublished

This text of 51 A.D.3d 451 (Friscia v. Kelly) 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.

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Friscia v. Kelly, 51 A.D.3d 451, 856 N.Y.S.2d 110 (N.Y. Ct. App. 2008).

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Opinion

Respondent Kelly’s final order, dated April 24, 2006, which dismissed petitioner from the Eolice Department, unanimously confirmed, the petition denied, and this proceeding (transferred to this Court by order of Supreme Court, New York County [Michael D. Stall-man, J.], entered April 4, 2007), dismissed, without costs.

The administrative determination is supported by substantial evidence (People ex rel. Vega v Smith, 66 NY2d 130 [1985]) that pursuant to random drug-testing procedures, petitioner gave two samples of hair from his head that were subjected to repeated testing by independent laboratories, yielding positive results for the presence of cocaine. This Court may not disturb the administrative hearing officer’s resolution of conflicting testimony (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]) regarding petitioner’s independent testing of a hair sample from his underarm, or his conclusion that such testing still allowed for the possibility that the underarm hair did in fact contain cocaine and was not exculpatory.

We have considered petitioner’s other arguments and find them unavailing. Concur—Lippman, P.J., Saxe, Buckley and Acosta, JJ.

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Respondent Kelly’s final order, dated April 24, 2006, which dismissed petitioner from the Eolice Department, unanimously confirmed, the petition denied, and this proceeding (transferred to this Court by order of Supreme Court, New York County [Michael D. Stall-man, J.], entered April 4, 2007), dismissed, without costs.

The administrative determination is supported by substantial evidence (People ex rel. Vega v Smith, 66 NY2d 130 [1985]) that pursuant to random drug-testing procedures, petitioner gave two samples of hair from his head that were subjected to repeated testing by independent laboratories, yielding positive results for the presence of cocaine. This Court may not disturb the administrative hearing officer’s resolution of conflicting testimony (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]) regarding petitioner’s independent testing of a hair sample from his underarm, or his conclusion that such testing still allowed for the possibility that the underarm hair did in fact contain cocaine and was not exculpatory.

We have considered petitioner’s other arguments and find them unavailing. Concur—Lippman, P.J., Saxe, Buckley and Acosta, JJ.

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Bluebook (online)

51 A.D.3d 451, 856 N.Y.S.2d 110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friscia-v-kelly-nyappdiv-2008.

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