Summary
In Matter of Butts v. Dwyer, 6 A.D.3d 1101, 775 N.Y.S.2d 631 (4th Dept.2004), the Court noted that hearsay evidence can be the basis of an administrative determination.
Summary of this case from In re McKayOpinion
OP 03-02265.
Decided April 30, 2004.
Proceeding pursuant to CPLR article 78 (initiated in the Appellate Division of the Supreme Court in the Fourth Judicial Department pursuant to CPLR 506 [b] [1]) to annul a determination of respondent. The determination revoked petitioner's pistol permit.
ANTHONY J. LA FACHE, UTICA, FOR PETITIONER.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (DOROTHY E. HILL OF COUNSEL), FOR RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., PINE, WISNER, SCUDDER, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination of respondent revoking his pistol permit. Contrary to the contention of petitioner, the determination is neither arbitrary and capricious nor an abuse of discretion and is supported by substantial evidence ( see Matter of Maye v. Dwyer, 295 A.D.2d 890, appeal dismissed 98 N.Y.2d 764). Because "[h]earsay evidence can be the basis of an administrative determination," complainant's supporting deposition provides a substantial basis for respondent's determination ( Matter of Gray v. Adduci, 73 N.Y.2d 741, 742). In any event, petitioner's own testimony also supports respondent's determination. Furthermore, we see no basis to disturb respondent's determination that revocation is the appropriate penalty ( see Matter of Alfonso v. New York City Police Dept. [License Div.], 283 A.D.2d 188; Matter of Zalmanov v. Bratton, 240 A.D.2d 173, 174).