Opinion
2015-03-25
In the Matter of Joseph T. DELGRANDE, respondent, v. GREENVILLE FIRE DISTRICT, et al., appellants.
Skelos, J.P., Dickerson, Maltese and LaSalle, JJ., concur.
Coughlin & Gerhart, LLP, Binghamton, N.Y. (Mary Louise Conrow of counsel), for appellants. Joseph T. Delgrande, Wappingers Falls, N.Y., respondent pro se.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, JJ.
In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Commissioners of the Greenville Fire District dated December 16, 2008, which rejected a hearing officer's recommendation, made after a hearing, and denied the petitioner's application for supplemental benefits pursuant to General Municipal Law § 207–a(2), the Greenville Fire District and the Board of Commissioners of the Greenville Fire District appeal from so much of a judgment of the Supreme Court, Westchester County (Smith, J.), dated November 1, 2012, as granted that branch of the petition which was to annul the determination, and directed them to pay the petitioner the subject benefits.
ORDERED that the appeal is dismissed and the judgment is vacated; and it is further,
ADJUDGED that the determination of the Board of Commissioners of the Greenville Fire District dated December 16, 2008, is confirmed, that branch of the petition which was to annul the determination is denied, and the proceeding is dismissed on the merits; and it is further,
ORDERED that one bill of costs is awarded to the appellants.
Since the petition raises a question of whether the challenged determination is supported by substantial evidence, the Supreme Court should have transferred the proceeding to this Court ( seeCPLR 7804[g] ). Nevertheless, because the complete record is now before this Court, we will treat the matter as one transferred here, and will review the administrative determination de novo ( see Matter of Figueroa v. Rhea, 120 A.D.3d 814, 814, 991 N.Y.S.2d 373; Matter of Whitehead v. New York City Hous. Auth., 102 A.D.3d 974, 974, 958 N.Y.S.2d 749).
“Judicial review of an administrative determination made after a hearing required by law is limited to whether the determination is supported by substantial evidence” ( Matter of Miserendino v. City of Mount Vernon, 96 A.D.3d 946, 947, 946 N.Y.S.2d 640; seeCPLR 7803[4]; 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 408 N.Y.S.2d 54, 379 N.E.2d 1183; Matter of Davenport v. City of Mount Vernon, 110 A.D.3d 1071, 1072, 973 N.Y.S.2d 797; Matter of Solano v. City of Mount Vernon, 108 A.D.3d 676, 676–677, 969 N.Y.S.2d 528). “Substantial evidence means more than a ‘mere scintilla of evidence,’ and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides” ( Matter of Solano v. City of Mount Vernon, 108 A.D.3d at 677, 969 N.Y.S.2d 528, quoting Matter of Stork Rest. v. Boland, 282 N.Y. 256, 273–274, 26 N.E.2d 247). “When there is conflicting evidence or different inferences may be drawn, ‘the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists' ” ( Matter of Solano v. City of Mount Vernon, 108 A.D.3d at 677, 969 N.Y.S.2d 528, quoting Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443–444, 522 N.Y.S.2d 478, 517 N.E.2d 193; see Matter of Miserendino v. City of Mount Vernon, 96 A.D.3d at 947, 946 N.Y.S.2d 640). “Moreover, where there is conflicting expert testimony, in making a General Municipal Law § 207–a determination, a municipality is ‘free to credit one physician's testimony over that of another’ ” ( Matter of Solano v. City of Mount Vernon, 108 A.D.3d at 677, 969 N.Y.S.2d 528, quoting Matter of Bernhard v. Hartsdale Fire Dist., 226 A.D.2d 715, 716, 641 N.Y.S.2d 868; see Matter of Segura v. City of Long Beach, 230 A.D.2d 799, 646 N.Y.S.2d 823). “Thus, even if ‘conflicting medical evidence can be found in the record,’ the municipality's determination, based on its own expert's conclusions, may still be supported by substantial evidence” ( Matter of Solano v. City of Mount Vernon, 108 A.D.3d at 677, 969 N.Y.S.2d 528, quoting Matter of Bernhard v. Hartsdale Fire Dist., 226 A.D.2d at 717, 641 N.Y.S.2d 868).
Here, the determination of the Board of Commissioners of the Greenville Fire District (hereinafter the Board), which rejected the recommendation of a hearing officer and denied the petitioner's application for benefits pursuant to General Municipal Law § 207–a(2), was supported by substantial evidence ( see Matter of Davenport v. City of Mount Vernon, 110 A.D.3d at 1072, 973 N.Y.S.2d 797; Matter of Solano v. City of Mount Vernon, 108 A.D.3d at 676–677, 969 N.Y.S.2d 528). The Board was entitled to make a finding contrary to the hearing officer's recommendation, as long as substantial evidence supported the determination ( see Matter of Corcoran v. City of Newburgh, 237 A.D.2d 518, 519, 656 N.Y.S.2d 884). The Board was free to credit the expert of the Greenville Fire District (hereinafter the Fire District) over the petitioner's expert, as it did, so long as testimony of the Fire District's expert was consistent and supported by the medical evidence ( see Matter of Miserendino v. City of Mount Vernon, 96 A.D.3d at 947–948, 946 N.Y.S.2d 640; Matter of Bernhard v. Hartsdale Fire Dist., 226 A.D.2d at 716, 641 N.Y.S.2d 868; Matter of Segura v. City of Long Beach, 230 A.D.2d 799, 646 N.Y.S.2d 823). Since the Board's determination was supported by substantial evidence, we confirm the determination and deny that branch of the petition which was to annul the determination ( see Matter of Mondello v. Beekman, 56 N.Y.2d 513, 449 N.Y.S.2d 963, 434 N.E.2d 1341, affd. 78 A.D.2d 824, 433 N.Y.S.2d 439; cf. Matter of Schenectady Police Benevolent Assn. v. New York State Pub. Empl. Relations Bd., 85 N.Y.2d 480, 626 N.Y.S.2d 715, 650 N.E.2d 373; Matter of Kauffman v. Dolce, 216 A.D.2d 298, 299, 627 N.Y.S.2d 750).