Sylvia v. Novello

Appellate Division of the Supreme Court of New York

Sylvia v. Novello

309 A.D.2d 1190, 765 N.Y.S.2d 296, 2003 N.Y. App. Div. LEXIS 10182

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 2, 2003

StatusPublished

Cited by3 cases

This text of 309 A.D.2d 1190 (Sylvia v. Novello) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sylvia v. Novello, 309 A.D.2d 1190, 765 N.Y.S.2d 296, 2003 N.Y. App. Div. LEXIS 10182 (N.Y. Ct. App. 2003).

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Opinion

CPLR article 78 proceeding transferred to this Court by an order of Supreme Court, Erie County (Fahey, J.), entered February 7, 2003, seeking to annul respondent’s determination sustaining a charge of patient abuse and/or neglect.

[1191]*1191It is hereby ordered that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed.

Memorandum: In this CPLR article 78 proceeding, petitioner, a certified nurse’s aide, challenges respondent’s determination sustaining a charge of patient abuse and/or neglect against him (see Public Health Law § 2803-d). The record supports respondent’s determination that the charge was substantiated by a fair preponderance of the evidence presented at the hearing (see Matter of Miller v DeBuono, 90 NY2d 783, 794 [1997]). The Department of Health (DOH) presented evidence that the patient petitioner was charged with neglecting and abusing reported to four staff members and a DOH investigator that petitioner grabbed and hurt him. The testimony of petitioner that there was no physical contact between him and the patient raised an issue of credibility that respondent was entitled to resolve against petitioner (see Matter of King v New York State Dept. of Health, 295 AD2d 743, 744 [2002]). Present — Green, J.P., Wisner, Gorski and Lawton, JJ.

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CPLR article 78 proceeding transferred to this Court by an order of Supreme Court, Erie County (Fahey, J.), entered February 7, 2003, seeking to annul respondent’s determination sustaining a charge of patient abuse and/or neglect.

[1191]*1191It is hereby ordered that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed.

Memorandum: In this CPLR article 78 proceeding, petitioner, a certified nurse’s aide, challenges respondent’s determination sustaining a charge of patient abuse and/or neglect against him (see Public Health Law § 2803-d). The record supports respondent’s determination that the charge was substantiated by a fair preponderance of the evidence presented at the hearing (see Matter of Miller v DeBuono, 90 NY2d 783, 794 [1997]). The Department of Health (DOH) presented evidence that the patient petitioner was charged with neglecting and abusing reported to four staff members and a DOH investigator that petitioner grabbed and hurt him. The testimony of petitioner that there was no physical contact between him and the patient raised an issue of credibility that respondent was entitled to resolve against petitioner (see Matter of King v New York State Dept. of Health, 295 AD2d 743, 744 [2002]). Present — Green, J.P., Wisner, Gorski and Lawton, JJ.

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Bluebook (online)

309 A.D.2d 1190, 765 N.Y.S.2d 296, 2003 N.Y. App. Div. LEXIS 10182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sylvia-v-novello-nyappdiv-2003.

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