Opinion
June 16, 1986
Determination confirmed and proceeding dismissed on the merits, with one bill of costs.
Although Special Term improperly transferred the instant proceeding to this court pursuant to CPLR 7803 (4) and 7804 (g) since the petitioner did not raise a question of substantial evidence in its petition (see, Matter of Pauling v. Smith, 46 A.D.2d 759), we will nevertheless decide the matter (see, Matter of Aversano v. Two Family Use Bd., 117 A.D.2d 665).
After reviewing the record pursuant to our power to review determinations such as that made by the Civil Service Commission in the case at bar, it cannot be said that the determination of the commission was "purely arbitrary" (see, Matter of Pauling v Smith, 46 A.D.2d 759, supra; Matter of Barbarito v. Moses, 31 A.D.2d 898), especially in light of the contradictory testimony given by two of the petitioner's witnesses at the hearing who observed the accident. On the other hand we reject the respondent Stuber's contention that this proceeding was brought frivolously so as to warrant the imposition of counsel fees. Weinstein, J.P., Niehoff, Kunzeman and Spatt, JJ., concur.