Opinion
February 14, 1995
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
In order to annul an administrative determination made after a hearing, a court must conclude that the record lacks substantial evidence to support the determination (see, Matter of Lahey v Kelly, 71 N.Y.2d 135; Matter of Pell v. Board of Educ., 34 N.Y.2d 222; Matter of McGarrell v. Carter, 205 A.D.2d 633). We find the petitioner's contention that the determination of the Commissioner of Hospitals of the County of Westchester (hereinafter the Commissioner) was not supported by substantial evidence to be without merit. The testimony and exhibits adduced at the hearing established the facts necessary to sustain the 31 specifications of misconduct and/or incompetence against the petitioner. The Hearing Officer, before whom all of the witnesses appeared, credited the testimony of the Commissioner's witnesses and not the petitioner's testimony. A reviewing court may not weigh the evidence or reject the choice made by the Hearing Officer where there is conflicting evidence and room for choice exists (see, Matter of Lawrence v Weinstein, 181 A.D.2d 888; Matter of Jeremias v. Sander, 177 A.D.2d 488). Further, the penalty of dismissal imposed was not so disproportionate to the offenses committed as to be shocking to one's sense of fairness (see, Matter of Holmes v. Simpson, 64 N.Y.2d 678; Matter of Pell v. Board of Educ., 34 N.Y.2d 222, supra; Matter of Lawrence v. Weinstein, supra; Matter of Bynoe v Weinstein, 82 A.D.2d 884).
Finally, since the prior workers' compensation hearing neither addressed the identical issue addressed in this proceeding nor afforded the respondents a full and fair opportunity to litigate that issue, the Commissioner's determination is not barred by collateral estoppel (see, D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659; Matter of Larch Realty Corp. v. Board of Appeals, 208 A.D.2d 630; Matter of City of Yonkers v. Yonkers Racing Corp., 171 A.D.2d 663). Sullivan, J.P., Rosenblatt, Joy and Altman, JJ., concur.