Opinion
October 31, 1994
Adjudged that the petition is granted, on the law, with costs, to the extent that the determination is modified by annulling the determinations of guilt with respect to Specifications 5 and 6, and dismissing those specifications; as so modified, the determination is confirmed and the proceeding is otherwise dismissed on the merits.
In order to annul an administrative determination made after a hearing, a court must conclude that the record lacks substantial evidence to support the determination (see, Matter of Lahey v Kelly, 71 N.Y.2d 135, 140; see, e.g., Matter of Lawrence v Weinstein, 181 A.D.2d 888; Matter of County of Suffolk v. Newman, 173 A.D.2d 618). We conclude that while the evidence was insufficient to sustain the Hearing Officer's findings with respect to the charges levied against the petitioner in Specifications 5 and 6, the testimony of two of the petitioner's coemployees with respect to the petitioner's actions toward the patient in question established the facts necessary to sustain the charges of misconduct set forth in Specifications 1 through 4. The Hearing Officer, before whom the witnesses appeared, decided to credit the testimony of the County's witnesses with respect to the two incidents in question, and rejected that of the petitioner and another coemployee. In such a case, a reviewing court may not weigh the evidence or reject the choice made by the Hearing Officer where there is conflicting evidence and room for choice exists (see, Matter of Berenhaus v. Ward, 70 N.Y.2d 436; Matter of Stork Rest. v. Boland, 282 N.Y. 256; Matter of Lawrence v. Weinstein, 181 A.D.2d 888, 889; Matter of Jeremias v. Sander, 177 A.D.2d 488, 489).
Under the circumstances, including that the petitioner punched and kicked a patient, the penalty of dismissal was not so disproportionate to the offenses committed "`as to be shocking to one's sense of fairness'" (Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 233; see, e.g., Matter of Lawrence v. Weinstein, supra).
We have examined the petitioner's remaining contention and find it to be without merit. Thompson, J.P., Rosenblatt, Miller and Ritter, JJ., concur.