Opinion
July 14, 1992
Appeal from the Supreme Court, Jefferson County, Gilbert, J.
Present — Boomer, J.P., Green, Balio, Boehm and Fallon, JJ.
Judgment unanimously vacated, determination confirmed without costs and petition dismissed. Memorandum: Because petitioner's CPLR article 78 proceeding presented a substantial evidence question, it should have been transferred to this court (see, CPLR 7804 [g]; Matter of Melvin v. Kelly, 126 A.D.2d 956, lv denied 69 N.Y.2d 609; Matter of Rivera v. Beekman, 86 A.D.2d 1). Village Law § 8806, pursuant to which the hearing was conducted, provides that the conviction of a member of a village police force shall be reviewed "in the manner provided by" CPLR article 78. Supreme Court, therefore, improperly denied transfer of the proceeding. However, we consider the matter de novo, as if it had been properly transferred (see, Johnson v. Ward, 124 A.D.2d 466; Matter of Rivera v. Beekman, supra).
Upon a review of the entire record we find that the Village Board's determination was supported by substantial evidence, making it unnecessary to reach the issue of whether petitioner, as a probationary officer, was entitled to the protection of McKinney's Unconsolidated Laws of N Y § 891 (L 1940, ch 834).