Opinion
2013-10482, Index No. 7770/13.
04-08-2015
In the Matter of Gregory BOSCH, petitioner, v. CITY OF MIDDLETOWN, New York, et al., respondents.
Jonathan Lovett, White Plains, N.Y., for petitioner. Richard J. Guertin, Corporation Counsel, Middletown, N.Y. (Robert N. Isseks of counsel), for respondents.
Jonathan Lovett, White Plains, N.Y., for petitioner.
Richard J. Guertin, Corporation Counsel, Middletown, N.Y. (Robert N. Isseks of counsel), for respondents.
Opinion Proceeding pursuant to CPLR article 78 to review a determination of the Common Council of the City of Middletown, dated August 20, 2013, which adopted the recommendation of the Committee of Aldermen, made after a hearing, finding the petitioner guilty of two charges of misconduct or insubordination, and terminated his employment as a firefighter.
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
The standard of review in an administrative determination made after a trial-type hearing directed 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 Martin v. Board of Trustees of the Vil. of Pelham Manor, 86 A.D.3d 645, 646, 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 Morales–Reyes v. Westchester County Dept. of Social Servs., 81 A.D.3d 831, 831, 916 N.Y.S.2d 819 ; Matter of Duda v. Board of Educ. of Uniondale Union Free School Dist., 34 A.D.3d 580, 581, 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 Ammann v. Odestick, 73 A.D.3d 915, 915, 899 N.Y.S.2d 880 ). Here, substantial evidence supported the determination of the respondent Common Council of the City of Middletown that the petitioner committed certain acts of misconduct or insubordination.
The penalty of dismissal did not constitute an abuse of discretion as a matter of law, as it 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 Ware v. Board of Fire Commr. of the Roosevelt Fire Dist., 98 A.D.3d 523, 523, 948 N.Y.S.2d 913 ; Matter of Loscuito v. Scoppetta, 50 A.D.3d 905, 906, 854 N.Y.S.2d 667 ).
The petitioner's remaining contentions are either without merit or not properly before this Court (see Matter of Khan v. New York State Dept. of Health, 96 N.Y.2d 879, 880, 730 N.Y.S.2d 783, 756 N.E.2d 71 ; Green v. New York City Police Dept., 34 A.D.3d 262, 825 N.Y.S.2d 9 ).
DILLON, J.P., DICKERSON, COHEN and DUFFY, JJ., concur.