Opinion
February 13, 1996
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
In order to annul an administrative determination that was 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). Moreover, a reviewing court may not weigh the evidence or reject the choice made by the Hearing Officer when 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).
The petitioner's contention that the determination is not supported by substantial evidence is without merit. The testimony adduced at the hearing in this case establishes the facts necessary to sustain the charge of misconduct against the petitioner.
The penalty of dismissal is not so disproportionate to the offense 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., supra; Matter of Lawrence v. Weinstein, supra; Matter of Bynoe v. Weinstein, 82 A.D.2d 884). Sullivan, J.P., Santucci, Friedmann and Krausman, JJ., concur.