Matter of Parris v. Shah

127 A.D.3d 515, 8 N.Y.S.3d 53

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 14, 2015
• Docket: 14793 101635/13
• Status: Published

Opinion

Determination of respondent Commissioner of the New York State Department of Health, dated August 6, 2013, which, among other things, after a hearing, adopted the Administrative Law Judge (ALJ)’s recommendation to sustain the first three charges of patient abuse and/or neglect by petitioner, a certified nurse’s aide, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Alice Schlesinger, J.], entered Apr. 16, 2014), dismissed, without costs.

Substantial evidence, including consistent testimony from several witnesses, photographs of the 91-year-old resident’s bruises, and the geriatric center’s records, supports the determination that petitioner pushed the resident into a bathroom wall, pulled the resident’s hair, and intimidated the resident by demanding an explanation as to why she had reported $300 to be missing from her room and had implicated petitioner (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179-182 [1978]). There is no basis for disturbing the ALJ’s credibility determinations (see Matter of Berenhaus v Ward, 70 NY2d 436, 443 [1987]). Further, hearsay evidence, which was corroborated by photographic evidence and other business records, was properly relied upon in making the determination (s ee Matter of Gray v Adduci, 73 NY2d 741, 742 [1988]). Petitioner’s right to due process was not violated by the resident’s absence at the hearing (see Matter of Pena v Hughes, 121 AD3d 550 [1st Dept 2014]). The record supports the ALJ’s finding that the resident was intimidated and afraid to testify.

We have considered petitioner’s remaining contentions and find them unavailing.

Concur — Sweeny, J.P., Renwick, Andrias, DeGrasse and Gische, JJ.