Whitehead v. McMickens

126 A.D.2d 440, 510 N.Y.S.2d 586, 1987 N.Y. App. Div. LEXIS 41591

Opinions

Appeal from order and judgment (one paper), Supreme Court, New York County (Preminger, J.), entered September 6, 1985, deemed, de novo, a CPLR article 78 proceeding transferred to this court for determination, and upon such transfer, the judgment vacated and the determination of the respondent Commissioner of the Department of Correction dated January 9, 1985, confirmed, without costs and disbursements.

Petitioner is a New York City correction officer who was the subject of disciplinary charges. There was a hearing before an Administrative Law Judge, who found petitioner guilty of three of the four specifications against him and recommended a suspension for 10 days, without pay. The respondent Commissioner accepted the recommendation of the Administrative Law Judge, imposing the aforesaid disciplinary sanction. The petitioner commenced an article 78 proceeding, alleging, inter alia, that the respondent Commissioner’s determination was contrary to the weight of the evidence. Special Term accepted jurisdiction of the petition and determined it, dismissing the petition.

Where an article 78 petition challenges an administrative hearing determination, on the ground that it is not supported by substantial evidence, the court in which the action is commenced must transfer the proceeding to the Appellate Division. (CPLR 7804 [g]; Johnson v Ward, 124 AD2d 466 [1st Dept 1986]; Matter of King v McMickens, 120 AD2d 351 [1st Dept 1986].) This court, however, "is empowered to dispose of all issues in the proceeding as if the matter had been properly transferred in the first instance.” (Matter of Rivera v Beekman, 86 AD2d 1, 5 [1st Dept 1982].) We have reviewed the entire record and find that the determination was not arbitrary or capricious, was supported by substantial evidence, and that the disciplinary sanction imposed was appropriate. Concur—Sullivan, Ross and Rosenberger, JJ.