Montella v. Kelly

Appellate Division of the Supreme Court of New York

Montella v. Kelly

202 A.D.2d 241, 608 N.Y.S.2d 461

Appellate Division of the Supreme Court of the State of New York·Decided March 8, 1994·Published·Cited by 1 cases

Opinion

—In this CPLR article 78 proceeding (transferred to this Court by order of the Supreme Court, New York County [Eugene Nardelli, J.], entered April 2, 1993), the petition is granted to the extent of annulling respondent’s determination dated November 18, 1992, which dismissed petitioner from his position as a police officer, and remanding the matter to respondent for a new hearing, without costs.

Given the Trial Commissioner’s obvious disregard of the favorable results of petitioner’s polygraph examination on the issue of whether his ingestion of cocaine was unwitting, which she dismissed as "monosyllabic answers to several direct questions”, it cannot be said that all of the otherwise unobjectionable evidence was taken into account. " 'The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.’ ” (Matter of Phinn v Kross, 8 AD2d 132, 135, quoting Universal Camera Corp. v Labor Bd., 340 US 474, 488 [Frankfurter, J.].) Under the circumstances, a new hearing before a different Trial Commissioner is warranted. Concur — Murphy, P. J., Ellerin, Kupferman and Rubin, JJ.

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—In this CPLR article 78 proceeding (transferred to this Court by order of the Supreme Court, New York County [Eugene Nardelli, J.], entered April 2, 1993), the petition is granted to the extent of annulling respondent’s determination dated November 18, 1992, which dismissed petitioner from his position as a police officer, and remanding the matter to respondent for a new hearing, without costs.

Given the Trial Commissioner’s obvious disregard of the favorable results of petitioner’s polygraph examination on the issue of whether his ingestion of cocaine was unwitting, which she dismissed as "monosyllabic answers to several direct questions”, it cannot be said that all of the otherwise unobjectionable evidence was taken into account. " 'The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.’ ” (Matter of Phinn v Kross, 8 AD2d 132, 135, quoting Universal Camera Corp. v Labor Bd., 340 US 474, 488 [Frankfurter, J.].) Under the circumstances, a new hearing before a different Trial Commissioner is warranted. Concur — Murphy, P. J., Ellerin, Kupferman and Rubin, JJ.

Montella v. Kelly, 202 A.D.2d 241, 608 N.Y.S.2d 461 (N.Y. Ct. App. 1994).

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Opinion

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