Opinion
December 14, 1995
Appeal from the Supreme Court, Ulster County (Bradley, J.).
Petitioner was found guilty of violating several prison disciplinary rules including possessing a spray bottle of gasoline in his cell, possessing a bottle of paint thinner in his cell, arson and destruction of State property. Petitioner commenced a CPLR article 78 proceeding and this Court annulled the latter two charges ( 201 A.D.2d 849). The annulment was based upon the Hearing Officer's failure to independently assess the credibility of a confidential informant, whose testimony formed a critical link in the establishment of substantial evidence on the challenged charges, and cited Matter of Huggins v Coughlin ( 184 A.D.2d 823; see, Matter of Abdur-Raheem v Mann, 85 N.Y.2d 113). Having prevailed, petitioner made this application to recover counsel fees pursuant to CPLR 8601 ( see, Matter of New York State Clinical Lab. Assn. v Kaladjian, 85 N.Y.2d 346). Supreme Court, finding both that the position of respondents was substantially justified and that special circumstances made such an award unjust, denied the application. Petitioner appeals.
The fact that an administrative determination is found to be unsupported by substantial evidence does not automatically equate to the conclusion that it lacks substantial justification ( see, Cohen v Bowen, 837 F.2d 582, 585; Matter of Scibilia v Regan, 199 A.D.2d 736). Here, the testimony concerning the informant's past reliability rested solely upon the assessment of past reliability by the facility's Superintendent and, while providing some detail, failed to set forth sufficient detail to provide a basis for an independent assessment by the Hearing Officer ( see, Matter of Santos v Coughlin, 201 A.D.2d 849, supra; see also, Matter of Huggins v Coughlin, 209 A.D.2d 770; Matter of Huggins v Coughlin, 184 A.D.2d 823, supra; Matter of Colon v Coughlin, 147 A.D.2d 802). The possession of a spray bottle containing gasoline certainly provided some justification to believe that petitioner was involved with arson.
Whether respondents' position was substantially justified is a determination committed to the discretion of Supreme Court in the first instance and is reviewable as such ( see, Matter of Simpkins v Riley, 193 A.D.2d 1009). Under the circumstances here, it cannot be said that respondents' position was without basis in fact or law ( see, Matter of Huggins v Coughlin, 209 A.D.2d 770, supra; Matter of Centennial Restorations Co. v Abrams, 202 A.D.2d 721, 722, lv denied 83 N.Y.2d 952). We find no abuse of discretion on the part of Supreme Court in concluding that respondents established that their position, although not correct, was substantially justified ( see, Matter of Scibilia v Regan, supra).
Mercure, J.P., White, Peters and Spain, JJ., concur. Ordered that the order is affirmed, without costs.