Opinion
March 8, 1994
Appeal from the Supreme Court, New York County [Eugene Nardelli, J.].
Given the Trial Commissioner's obvious disregard of the favorable results of petitioner's polygraph examination on the issue of whether his ingestion of cocaine was unwitting, which she dismissed as "monosyllabic answers to several direct questions", it cannot be said that all of the otherwise unobjectionable evidence was taken into account. "`The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.'" (Matter of Phinn v Kross, 8 A.D.2d 132, 135, quoting Universal Camera Corp. v. Labor Bd., 340 U.S. 474, 488 [Frankfurter, J.].) Under the circumstances, a new hearing before a different Trial Commissioner is warranted.
Concur — Murphy, P.J., Ellerin, Kupferman and Rubin, JJ.