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Friscia v. Kelly

Appellate Division of the Supreme Court of New York, First Department
May 6, 2008
51 A.D.3d 451 (N.Y. App. Div. 2008)

Opinion

No. 3593.

May 6, 2008.

Respondent Kelly's final order, dated April 24, 2006, which dismissed petitioner from the Police Department, unanimously confirmed, the petition denied, and this proceeding (transferred to this Court by order of Supreme Court, New York County [Michael D. Stallman, J.], entered April 4, 2007), dismissed, without costs.

Worth, Longworth London, LLP, New York (Howard B. Sterinbach of counsel), for petitioner.

Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for respondents.

Before: Lippman, P.J., Saxe, Buckley and Acosta, JJ.


The administrative determination is supported by substantial evidence ( People ex rel. Vega v Smith, 66 NY2d 130) that pursuant to random drug-testing procedures, petitioner gave two samples of hair from his head that were subjected to repeated testing by independent laboratories, yielding positive results for the presence of cocaine. This Court may not disturb the administrative hearing officer's resolution of conflicting testimony ( see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444) regarding petitioner's independent testing of a hair sample from his underarm, or his conclusion that such testing still allowed for the possibility that the underarm hair did in fact contain cocaine and was not exculpatory.

We have considered petitioner's other arguments and find them unavailing.


Summaries of

Friscia v. Kelly

Appellate Division of the Supreme Court of New York, First Department
May 6, 2008
51 A.D.3d 451 (N.Y. App. Div. 2008)
Case details for

Friscia v. Kelly

Case Details

Full title:In the Matter of DOMINICK FRISCIA, Petitioner, v. RAYMOND W. KELLY, as…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: May 6, 2008

Citations

51 A.D.3d 451 (N.Y. App. Div. 2008)
2008 N.Y. Slip Op. 4204
856 N.Y.S.2d 110