Opinion
November 21, 1989
Appeal from the Supreme Court, New York County (Jawn A. Sandifer, J.).
The finding of the Commissioner was supported by substantial evidence in the record and must be confirmed. (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 N.Y.2d 176.) There were only two witnesses at the hearing — the captain who asserted that petitioner was sleeping on duty, and the petitioner, who denied the charge. The administrative determination was entirely a question of weighing the credibility of the two witnesses.
Where the evidence is conflicting, the duty of weighing the evidence and determining credibility rests upon the administrative agency. The court may not weigh the evidence and reject the choice made by the administrative agency. (Matter of Berenhaus v Ward, 70 N.Y.2d 436.) The sanction imposed was not so disproportionate to the offense as to be considered shocking to one's sense of fairness. (Matter of Pell v Board of Educ., 34 N.Y.2d 222.)
Concur — Sullivan, J.P., Carro, Milonas, Ellerin and Wallach, JJ.