Opinion
November 16, 1979
Appeal from the Erie Supreme Court.
Present — Simons, J.P., Hancock, Jr., Schnepp, Doerr and Moule, JJ.
Determination confirmed, without costs, and petition dismissed. All concur, except Doerr, J., who dissents and votes to grant the petition, in the following memorandum.
I do not believe that the evidence presented supports respondent's determination that petitioner was guilty of untrustworthiness and therefore dissent. While cognizant of the limitations placed upon our court in article 78 proceedings, the determination by respondent must be supported by substantial evidence as required by CPLR 7803 (subd 4) and, as stated in Matter of Pell v Board of Educ. ( 34 N.Y.2d 222, 231) "Rationality is what is reviewed under both the substantial evidence rule and the arbitrary and capricious standard. (Matter of 125 Bar Corp. v State Liq. Auth., 24 N.Y.2d 174, 178; 1 N.Y. Jur, Administrative Law, § 184.)" Inference and assumption form much of the basis upon which respondent relies. Arbitrary is an apt description of conclusions which by and large are at variance with findings. "A mere scintilla of evidence sufficient to justify a suspicion is not sufficient to support a finding upon which legal rights and obligations are based." (Matter of Stork Rest. v Boland, 282 N.Y. 256, 273-274.) In a disciplinary proceeding petitioner is entitled to all the essential elements of a fair trial (Matter of Heckt v City of Lackawanna, 44 A.D.2d 763). This includes the production of evidence sufficient to support a finding of guilt. Conduct, not proved satisfactorily but only advanced conjecturally, to be deduced from equivocal conduct cannot form the basis for a suspension (Matter of Abel v Lomenzo, 25 A.D.2d 104, affd 18 N.Y.2d 619). Further, conduct which forms the basis for a finding of untrustworthiness and suspension must be embraced in the charges (Matter of Abel v Lomenzo, supra). Petitioner was entitled to know in advance of the hearing the charges to which he was required to respond. (Grimm v Department of State, 56 A.D.2d 591.) The findings of the hearing officer upon which he based his conclusion of untrustworthiness against John Hannon were not incorporated in the charges against petitioner. For these reasons I vote that the determination of the Secretary of State be vacated and the suspension annulled, on the law.