Mundinger v. Smithtown Cent. Sch. Dist.

152 A.D.3d 607

59 N.Y.S.3d 62

In the Matter of Edward MUNDINGER, petitioner,

v.SMITHTOWN CENTRAL SCHOOL DISTRICT, respondent.

2015-06265, Index No. 19662/14.

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

July 12, 2017.

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

Lamb & Barnosky, LLP, Melville, NY (Matthew J. Mehnert and Sharon N. Berlin of counsel), for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

Proceeding pursuant to CPLR article 78 to review a determination of the Smithtown Central School District dated July 30, 2014, 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.

The standard of review of an administrative determination made after a quasi-judicial hearing required by law is limited to considering whether the determination was based on substantial evidence (see Matter of Lahey v. Kelly, 71 N.Y.2d 135, 140, 524 N.Y.S.2d 30, 518 N.E.2d 924 ; 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183 ; Matter of Bosch v. City of Middletown, N.Y., 127 A.D.3d 855, 855–856, 4 N.Y.S.3d 898 ; Matter of Martin v. Board of Trustees of the Vil. of Pelham Manor, 86 A.D.3d 645, 927 N.Y.S.2d 599 ). It is the function of the administrative agency, not the reviewing court, to weigh the evidence, assess the credibility of witnesses, and determine which testimony to accept and which to reject (see Matter of Bosch v. City of Middletown, N.Y., 127 A.D.3d at 855–856, 4 N.Y.S.3d 898 ; Matter of Morales–Reyes v. Westchester County Dept. of Social Servs., 81 A.D.3d 831, 916 N.Y.S.2d 819 ; Matter of Duda v. Board of Educ. of Uniondale Free School Dist., 34 A.D.3d 580, 824 N.Y.S.2d 384 ). Where evidence is conflicting and room for choice exists, a reviewing court may not weigh the evidence or reject the choice made by the administrative agency (see Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 444, 522 N.Y.S.2d 478, 517 N.E.2d 193 ; Matter of Bosch v. City of

Middletown, N.Y.,

127 A.D.3d at 856, 4 N.Y.S.3d 898 ; Matter of

Ammann v. Odestick, 73 A.D.3d 915, 899 N.Y.S.2d 880 ). Here, substantial evidence supported the determination of the respondent, Smithtown Central School District, that the petitioner committed certain acts of misconduct or insubordination.

The penalty of termination of the petitioner's employment was not so disproportionate to the offenses as to be shocking to one's sense of fairness (see Matter of Kreisler v. New York City Tr. Auth., 2 N.Y.3d 775, 776, 780 N.Y.S.2d 302, 812 N.E.2d 1250 ; Matter of Bosch v. City of Middletown, N.Y., 127 A.D.3d...