Hernandez v. Port Wash. Union Free Sch. Dist.

193 A.D.3d 733

141 N.Y.S.3d 875 (Mem)

In the Matter of Edwin HERNANDEZ, petitioner,

v.PORT WASHINGTON UNION FREE SCHOOL DISTRICT, respondent.

2019–06614

Index No. 604599/19

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

Submitted—February 2, 2021

April 7, 2021

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Brooklyn, N.Y. (Anthony J. Genovesi of counsel), for petitioner.

Bond, Schoeneck & King, PLLC, Garden City, N.Y. (Howard M. Miller and Hilary Moreira of counsel), for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, PAUL WOOTEN, JJ.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of the Port Washington Union Free School District dated December 5, 2018. The determination adopted the findings of a hearing officer dated November 29, 2018, made after a hearing pursuant to Civil Service Law § 75, that the petitioner was guilty of certain charges of misconduct, 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.

On August 11, 2017, the petitioner, a motor equipment operator employed by the Port Washington Union Free School District (hereinafter the respondent), sustained injuries when the ride-on lawn mower he was using while at work overturned. As a result of the accident, the petitioner obtained a doctor's recommendation that he not return to work until September 7, 2017. After the petitioner returned to work, the respondent preferred fourteen Civil Service Law § 75 disciplinary charges against him for misconduct that occurred between August 12, 2017, and September 8, 2017. The sum and substance of the charges was that the petitioner was out of work on workers’ compensation even though he was able to perform the essential functions of his job as a motor equipment operator. Following a hearing on the disciplinary charges, the hearing officer issued a report and recommendation, which found the petitioner guilty of all 14 disciplinary charges and recommended terminating his employment. The respondent subsequently adopted the hearing officer's findings and recommendation and terminated the petitioner's employment as of December 5, 2018. The petitioner then commenced this proceeding pursuant to CPLR article 78 to review the respondent's determination, and the Supreme Court transferred the matter to this Court pursuant to CPLR 7804(g).

This Court's review of an administrative determination in an employee disciplinary proceeding made after a hearing pursuant to Civil Service Law § 75 is limited to considering whether the determination was supported by substantial evidence (see CPLR 7803[4] ; 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 179–180, 408 N.Y.S.2d 54, 379 N.E.2d 1183 ; Matter of Kelly v. County of Dutchess, 176 A.D.3d 1060, 1062, 111 N.Y.S.3d 51 ). "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 Grimaldi v. Gough, 114 A.D.3d 679, 680, 979 N.Y.S.2d 682, quoting Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 444, 522 N.Y.S.2d 478, 517 N.E.2d 193 ). Here, any credibility...