LaCanfora v. Lloyd

229 A.D.2d 496, 646 N.Y.S.2d 276, 1996 N.Y. App. Div. LEXIS 7761

Opinion

—Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York City Sanitation Department, dated January 26, 1994, which, after a hearing, terminated the petitioner’s employment with the Department of Sanitation.

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

In order to annul an administrative determination made af ter a hearing, a court must conclude that the record lacks substantial evidence to support that determination (see, Matter of Lahey v Kelly, 71 NY2d 135, 140; Matter of Drecker v Scoralick, 209 AD2d 517). The petitioner’s contention that the determination of the Commissioner of the New York City Department of Sanitation was not supported by substantial evidence is without merit. The testimony at the hearing established the facts necessary to sustain the charges against the petitioner. The Commissioner decided to credit the testimony of the respondents’ witnesses and not the testimony of the petitioner. In a proceeding pursuant to CPLR article 78, a reviewing court may not weigh evidence or reject the choice made by a hearing officer where there is conflicting evidence and room for choice exists (see, Matter of McQueeney v Dutchess County Sheriff, 223 AD2d 710). A review of the record reveals that there existed a rational basis to support the findings upon which the Commissioner’s determination was predicated (see, Matter of Purdy v Kreisberg, 47 NY2d 354, 358). The penalty of termination was not excessive. Miller, J. P., Ritter, Santucci and Altman, JJ., concur.