Sylvia v. Novello

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

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.

It 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.