Grimaldi v. Gough

114 A.D.3d 679

979 N.Y.S.2d 682

2014 N.Y. Slip Op. 00663

In the Matter of Anthony GRIMALDI, petitioner,

v.Maggie GOUGH, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 5, 2014.

Wolin & Wolin, Jericho, N.Y. (Alan E. Wolin of counsel), for petitioner.

Bond, Schoeneck & King, PLLC, Garden City, N.Y. (Ernest R. Stolzer and Jessica C. Satriano of counsel), for respondents.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and ROBERT J. MILLER, JJ.

Proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the Elmont Public Library, dated July 22, 2011, which adopted the report and recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law article 75, finding the petitioner guilty of certain disciplinary charges, and terminated the petitioner's employment.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

Judicial review of an administrative determination made after a hearing at which evidence is taken pursuant to direction of law is limited to a consideration of whether that determination was supported by substantial evidence upon the whole record ( seeCPLR 7803[4]; 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 408 N.Y.S.2d 54, 379 N.E.2d 1183; Matter of Solano v. City of Mount Vernon, 108 A.D.3d 676, 676–677, 969 N.Y.S.2d 528; Matter of Bocek v. Lauro, 104 A.D.3d 940, 941, 960 N.Y.S.2d 913). When there is conflicting evidence or different inferences may be drawn, “the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists” ( Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 444, 522 N.Y.S.2d 478, 517 N.E.2d 193 [internal quotation marks omitted]; see Matter of Peterson v. City of Poughkeepsie, 99 A.D.3d 714, 715–716, 951 N.Y.S.2d 567). Any credibility issues here were resolved by the hearing officer, and we find no basis upon which to disturb the hearing officer's determination. The determination was supported by substantial evidence.

Contrary to the petitioner's contention, under the circumstances presented, the penalty of termination of the petitioner's employment was not so disproportionate to the offense committed as to be shocking to...