Opinion
July 15, 1996
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
In order to annul an administrative determination made after a hearing, a court must conclude that the record lacks substantial evidence to support that determination (see, Matter of Lahey v. Kelly, 71 N.Y.2d 135, 140; Matter of Drecker v Scoralick, 209 A.D.2d 517). The petitioner's contention that the determination of the Commissioner of the New York City Department of Sanitation was not supported by substantial evidence is without merit. The testimony at the hearing established the facts necessary to sustain the charges against the petitioner. The Commissioner decided to credit the testimony of the respondents' witnesses and not the testimony of the petitioner. In a proceeding pursuant to CPLR article 78, a reviewing court may not weigh evidence or reject the choice made by a hearing officer where there is conflicting evidence and room for choice exists (see, Matter of McQueeney v. Dutchess County Sheriff, 223 A.D.2d 710). A review of the record reveals that there existed a rational basis to support the findings upon which the Commissioner's determination was predicated (see, Matter of Purdy v. Kreisberg, 47 N.Y.2d 354, 358). The penalty of termination was not excessive. Miller, J.P., Ritter, Santucci and Altman, JJ., concur.