Kolanik v. Safir

231 A.D.2d 720, 647 N.Y.S.2d 995, 1996 N.Y. App. Div. LEXIS 9684

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 1996
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the New York City Fire Department, dated February 15, 1994, which, after a hearing, found that the petitioner violated certain departmental regulations and imposed a penalty of forfeiture of 10 days pay.

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

In order to annul an administrative determination made after a hearing, a court must conclude that the record lacks substantial evidence to support the determination (see, Matter of Pell v Board of Educ., 34 NY2d 222, 231). The petitioner’s contention that the Commissioner’s determination was not supported by substantial evidence is without merit. The testimony of the Department’s witness established the facts necessary to sustain the charges that the petitioner violated the Regulations of the Uniformed Force of the Fire Department of the City of New York §§ PA/ID 1-77R, 25.1.1, and 25.1.10. The Hearing Officer, before whom all of the witnesses appeared, credited the testimony of the Department’s witness and not the testimony of the petitioner’s witnesses. A reviewing court may not weigh the evidence or reject the choice made by the Hearing Officer where there is conflicting evidence and room for choice exists (see, Matter of Lawrence v Weinstein, 181 AD2d 888; Matter of Jeremias v Sander, 177 AD2d 488). Furthermore, the penalty imposed was not so disproportionate to the offenses committed as to be shocking to one’s sense of fairness (Matter of Pell v Board of Educ., supra). Miller, J. P., Altman, Hart and McGinity, JJ., concur.