Green v. Sielaff

Appellate Division of the Supreme Court of New York

Green v. Sielaff

198 A.D.2d 113, 603 N.Y.S.2d 156

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

DecidedNovember 16, 1993

StatusPublished

Cited by1 cases

This text of 198 A.D.2d 113 (Green v. Sielaff) 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

Green v. Sielaff, 198 A.D.2d 113, 603 N.Y.S.2d 156 (N.Y. Ct. App. 1993).

Pincite

Opinion

—Determination of respondent Correction Commissioner, dated October 9, 1991, which dismissed petitioner from his position with the Correction Department is unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Stuart C. Cohen, J.], entered March 27, 1992), is dismissed without costs or disbursements.

Upon review of the record, we find that there is substantial evidence to support the determination that petitioner violated the Department Rules and Regulations by unlawfully ingesting cocaine. Petitioner raised an affirmative defense of unknowing ingestion and contended that his positive test results came from unwittingly drinking liquor which had been spiked with cocaine at a bachelor party two days prior to the drug test. At the hearing, the party’s bartender testified that he had spiked three bottles of liquor with cocaine and that he could have served petitioner from one of the spiked bottles. The Hearing Officer however, rejected the affirmative defense because petitioner’s evidence only established a possibility that his positive test was the result of unknowing ingestion, but that petitioner did not meet his burden of persuasion. We find no reason to disturb the findings of the Hearing Officer as to the material question of fact (see, Matter of Pell v Board of Educ., 34 NY2d 222, 231). Concur — Carro, J. P., Rosenberger, Kassal and Rubin, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Determination of respondent Correction Commissioner, dated October 9, 1991, which dismissed petitioner from his position with the Correction Department is unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Stuart C. Cohen, J.], entered March 27, 1992), is dismissed without costs or disbursements.

Upon review of the record, we find that there is substantial evidence to support the determination that petitioner violated the Department Rules and Regulations by unlawfully ingesting cocaine. Petitioner raised an affirmative defense of unknowing ingestion and contended that his positive test results came from unwittingly drinking liquor which had been spiked with cocaine at a bachelor party two days prior to the drug test. At the hearing, the party’s bartender testified that he had spiked three bottles of liquor with cocaine and that he could have served petitioner from one of the spiked bottles. The Hearing Officer however, rejected the affirmative defense because petitioner’s evidence only established a possibility that his positive test was the result of unknowing ingestion, but that petitioner did not meet his burden of persuasion. We find no reason to disturb the findings of the Hearing Officer as to the material question of fact (see, Matter of Pell v Board of Educ., 34 NY2d 222, 231). Concur — Carro, J. P., Rosenberger, Kassal and Rubin, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

198 A.D.2d 113, 603 N.Y.S.2d 156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-sielaff-nyappdiv-1993.

Opinion

Related

Cite This Page — Counsel Stack