Lang v. Kelly

Appellate Division of the Supreme Court of New York

Lang v. Kelly

127 A.D.2d 978, 512 N.Y.S.2d 938, 1987 N.Y. App. Div. LEXIS 43467

Appellate Division of the Supreme Court of the State of New York·Decided February 27, 1987·Published·Cited by 1 cases

Opinion

Judgment unanimously vacated on the law, determination confirmed and petition dismissed. Memorandum: Special Term erred in failing to transfer this CPLR article 78 proceeding, which alleged that respondent’s determination was not supported by substantial evidence (CPLR 7804 [g]). Moreover, contrary to the finding below, we conclude that there is substantial evidence, based on the written misbehavior report, to support respondent’s determination that petitioner disobeyed a direct order (People ex rel. Vega v Smith, 66 NY2d 130). The essential issue at the hearing was credibility, and the Hearing Officer was entitled to credit the officer’s report. If petitioner wished to cross-examine the charging officer, he had the right to call the officer as a witness (Matter of Curl v Kelly, 125 AD2d 948). (Appeal from judgment of [979]*979Supreme Court, Wyoming County, Newman, J. — art 78.) Present — Doerr, J. P., Boomer, Pine, Balio and Davis, JJ.

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Judgment unanimously vacated on the law, determination confirmed and petition dismissed. Memorandum: Special Term erred in failing to transfer this CPLR article 78 proceeding, which alleged that respondent’s determination was not supported by substantial evidence (CPLR 7804 [g]). Moreover, contrary to the finding below, we conclude that there is substantial evidence, based on the written misbehavior report, to support respondent’s determination that petitioner disobeyed a direct order (People ex rel. Vega v Smith, 66 NY2d 130). The essential issue at the hearing was credibility, and the Hearing Officer was entitled to credit the officer’s report. If petitioner wished to cross-examine the charging officer, he had the right to call the officer as a witness (Matter of Curl v Kelly, 125 AD2d 948). (Appeal from judgment of [979]*979Supreme Court, Wyoming County, Newman, J. — art 78.) Present — Doerr, J. P., Boomer, Pine, Balio and Davis, JJ.

Lang v. Kelly, 127 A.D.2d 978, 512 N.Y.S.2d 938, 1987 N.Y. App. Div. LEXIS 43467 (N.Y. Ct. App. 1987).

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Opinion

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