Migliaccio v. O'Neill

277 A.D.2d 1093

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1950
• Status: Published

Opinion

Determination confirmed, without costs. Memorandum: In this proceeding under article 78 of the Civil Practice Act, petitioner has urged that the determination of the director was against the weight of evidence. Assuming, but not deciding, that such is the fact, we are without power to annul the determination on that ground. “In a proceeding such as this, brought under article 78 of the Civil Practice Act, the record may be examined only to ascertain whether there is ‘ substantial evidence ’ to justify the administrative determination.” (Matter of Humphrey v. State Ins. Fund, 298 N. Y. 327, 331-332; see, also, Matter of Miller v. Kling, 291 N. Y. 65, and Matter of Burke v. Bromberger, 300 N. Y. 248.) While on this record we consider the punishment of the petitioner, i. e., dismissal from service, very severe for the offense charged, since we cannot say there was not substantial evidence upon which the director made his determination, we are hot given the power to reduce or mitigate the punishment. Until such time as the Legislature enlarges the power of the court in an article 78 proceeding, we can only follow the substantial evidence rule and, in a case such as this, can grant no relief to the petitioner. All concur. (Review of action by director in dismissing petitioner as head nurse of Utica State Hospital.) Present— Taylor, P. J., McCurn, Love, Kimball and Piper, JJ.