Narvaez v. Fischer

86 A.D.3d 881, 927 N.Y.2d 475

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 28, 2011
• Status: Published

Opinion

The determination is supported by substantial evidence including the misbehavior report, library loan forms and the testimony of the library assistant (see Matter of Sproul v Goord, 308 AD2d 612, 613 [2003]; Matter of Porter v McGinnis, 307 AD2d 500 [2003], Iv denied 100 NY2d 516 [2003]). To the extent that the record contains evidence that petitioner attempted to return the books by placing them into a library drop box, this created factual and credibility issues to be resolved by the Hearing Officer (see Matter of Sproul v Goord, 308 AD2d at 613; Matter of Porter v McGinnis, 307 AD2d at 500). We reject petitioner’s argument that he was improperly denied his employee assistant as a witness inasmuch as the record reflects that the assistant’s testimony would have been based upon his interview of the library assistant, who did testify (see Matter of Davis v Prack, 63 AD3d 1457, 1458 [2009]; Matter of Thomas v Bennett, 271 AD2d 768, 768 [2000]). We have reviewed petitioner’s remaining contentions, including those concerning the timing of the misbehavior report and hearing, and find them to be without merit.

Mercure, J.P., Rose, Kavanagh, McCarthy and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.