Opinion
March 30, 1992
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 the determination (see, Matter of Lahey v Kelly, 71 N.Y.2d 135, 140; Matter of County of Suffolk v Newman, 173 A.D.2d 618). We find the petitioner's contention that the Commissioner's determination was not supported by substantial evidence to be without merit. The testimony of the abused patient established the facts necessary to sustain the charge of misconduct and/or incompetence against the petitioner. The Hearing Officer, before whom the witnesses appeared, decided to credit the testimony of the patient and reject that of the petitioner. 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 Jeremias v Sander, 177 A.D.2d 488).
The penalty of dismissal was not so disproportionate to the offense committed "as to be shocking to one's sense of fairness" (Matter of Pell v Board of Educ., 34 N.Y.2d 222, 233). Harwood, J.P., Eiber, Ritter and Copertino, JJ., concur.