Opinion
December 9, 1971
Determination of respondent, dated June 25, 1970, finding petitioner guilty of threatening a superior officer and suspending him for eight days without pay, unanimously annulled, on the law, without costs and without disbursements, upon the ground that this record lacks substantial evidence to support a finding of guilt in respect of Specification No. 3. The petitioner, a veteran, with an 11-year unblemished record in the Department of Marine and Aviation, has been found guilty in a departmental hearing of orally threatening a Mate during the course of a voyage on a ferryboat from Manhattan to Staten Island. But the record was infirm due to a conflict in testimony as to precisely what were the words uttered by petitioner. The petitioner maintained that all he said was: "I can't wait to get off the boat". And the testimony of the Captain was tepid in the extreme. His conduct also was susceptible of the interpretation that the disciplinary action ordered by him was merely to placate the Mate and to uphold the latter's status in the presence of the crew. But his half-hearted testimony cannot prevail against the obvious counter probabilities. It certainly is not sufficient to uphold any conclusion that there was "substantial evidence" to support the administrative determination. ( Matter of La Forge v. Kennedy, 7 N.Y.2d 973.)
Concur — Stevens, P.J., McGivern, Markewich and Murphy, JJ.