A.A.C. Contracting, Inc. v. N.Y. State Dep't of Econ. Dev.

2 Citing cases

  1. Scherzi Sys. v. White

    No. 2021-05143 (N.Y. App. Div. Sep. 30, 2021)

    Specifically, the Director ruled that reaching "[a]ny other conclusion, based on testimony at the hearing, that was not part of the application, [wa]s insufficient to meet the substantial evidence standard, as it would be improperly considered facts not in evidence; and, therefore, irrelevant." However, it is not only appropriate for an agency to consider the testimony offered at an administrative hearing in rendering its determination (see Matter of Haug v State Univ. of N.Y. at Potsdam, 32 N.Y.3d 1044, 1046 [2018]; see also Matter of A.A.C. Contr., Inc. v New York State Dept. of Economic Dev., 195 A.D.3d 1284, 1286-1287 [2021]; Matter of Upstate Elec., LLC v New York State Dept. of Economic Dev., 179 A.D.3d 1343, 1344 [2020]), it is required, as "[n]o decision, determination or order shall be made except upon consideration of the record as a whole" (State Administrative Procedure Act § 306 [1]; see CPLR 7803 [4]; 5 NYCRR former 144.5 [a]). This is particularly the case where, as here, the hearing testimony at issue did not constitute new evidence previously unavailable at the time of the application but, instead, served to explain and clarify technical terms and documentation that petitioner had submitted as part of its application demonstrating that Dana Scherzi was the majority owner of the business. As the Director failed to consider the testimony presented at the administrative hearing, her determination lacked an adequate factual basis (see Matter of Cantone v DiNapoli, 50 A.D.3d 1307, 1307-1308

  2. Scherzi Sys. v. White

    2021 N.Y. Slip Op. 5143 (N.Y. Sup. Ct. 2021)

    Specifically, the Director ruled that reaching "[a]ny other conclusion, based on testimony at the hearing, that was not part of the application, [wa]s insufficient to meet the substantial evidence standard, as it would be improperly considered facts not in evidence; and, therefore, irrelevant." However, it is not only appropriate for an agency to consider the testimony offered at an administrative hearing in rendering its determination (see Matter of Haug v State Univ. of N.Y. at Potsdam, 32 N.Y.3d 1044, 1046 [2018]; see also Matter of A.A.C. Contr., Inc. v New York State Dept. of Economic Dev., 195 A.D.3d 1284, 1286-1287 [2021]; Matter of Upstate Elec., LLC v New York State Dept. of Economic Dev., 179 A.D.3d 1343, 1344 [2020]), it is required, as "[n]o decision, determination or order shall be made except upon consideration of the record as a whole" (State Administrative Procedure Act § 306 [1]; see CPLR 7803 [4]; 5 NYCRR former 144.5 [a]). This is particularly the case where, as here, the hearing testimony at issue did not constitute new evidence previously unavailable at the time of the application but, instead, served to explain and clarify technical terms and documentation that petitioner had submitted as part of its application demonstrating that Dana Scherzi was the majority owner of the business.