Opinion
Submitted October 13, 2000.
November 6, 2000.
Proceeding pursuant to CPLR article 78 to review a determination of the respondent County of Dutchess, dated March 10, 1999, which, upon adopting the recommendation of a Hearing Officer, made after a hearing, finding the petitioner guilty of misconduct and/or incompetence, terminated his employment as a heating and ventilation technician at the respondent Dutchess County Community College.
Basso Burke, LLP, Poughkeepsie, N.Y. (William T. Burke of counsel), for petitioner.
Ian G. MacDonald, County Attorney, Poughkeepsie, N.Y. (Keith P. Byron of counsel), for respondents.
Before: WILLIAM C. THOMPSON, J.P., DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, ROBERT W. SCHMIDT, JJ.
DECISION JUDGMENT
ADJUDGED that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
"It is well settled that in a CPLR article 78 proceeding to review the determination of an administrative board or officer, the determination must be upheld if it is based upon substantial evidence" (Matter of Mistretta v. Kane, 251 A.D.2d 418). A court may not weigh the evidence or reject an administrative determination where the evidence is conflicting and room for choice exists (see, Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444; see also, Matter of Mistretta v. Kane, supra). The determination of the respondent County of Dutchess as to the guilt of the petitioner with respect to the charges is supported by substantial evidence.
The penalty imposed was not so disproportionate to the offenses as to be shocking to one's sense of fairness (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 234).
The petitioner's remaining contention is without merit.