Opinion
Appeal No. 15167 Index No. 260801/19ECase No. 2021-01250
01-27-2022
In the Matter of Felix Reynoso, Petitioner, v. New York City Office of Administrative Trials and Hearings, Respondent. Appeal No. 15167 Case No. 2021-01250
Douglas Kaplan, Merrick, for petitioner. Georgia M. Pestana, Corporation Counsel, New York (Jeremy Pepper of counsel), for respondent.
Douglas Kaplan, Merrick, for petitioner.
Georgia M. Pestana, Corporation Counsel, New York (Jeremy Pepper of counsel), for respondent.
Before: Kapnick, J.P., Gesmer, González, Kennedy, Shulman, JJ.
Determination of respondent, dated June 27, 2019, which affirmed the Hearing Officer's decision to the extent of finding violations of Administrative Code § 28-205.1 and -210.1, and imposing a total civil penalty of $20,350, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order, Supreme Court, Bronx County [Howard H. Sherman, J.], entered on or about December 28, 2020) dismissed, without costs.
The determination sustaining the summonses insofar as indicated is supported by substantial evidence (see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 N.Y.2d 176, 179-182 [1978]), including the inspecting officer's written statements in the summonses and his testimony at the hearing. There is no basis for disturbing the Hearing Officer's affirmed findings that the inspector testified credibly, and that petitioner's testimony and documentary evidence generally lacked credibility (see e.g. Matter of Umeokafor v City of New York, 199 A.D.3d 435 [1st Dept 2021]). In an article 78 proceeding, "courts may not weigh the evidence or reject the choice made by [the agency] where the evidence is conflicting and room for choice exists" (Matter of Berenhaus v Ward, 70 N.Y.2d 436, 444 [1987] [internal quotation marks omitted]).
Petitioner affirmatively waived and failed to preserve his arguments that a witness was prevented from testifying because no interpreter was provided, and that the hearing examiner improperly limited petitioner's cross-examination of the inspector. This Court has "no discretionary authority" to "reach [] an unpreserved issue in the interest of justice" in an article 78 proceeding (Matter of Khan v New York State Dept. of Health, 96 N.Y.2d 879, 880 [2001] [internal quotation marks omitted]; see e.g. Green v New York City Police Dept., 34 A.D.3d 262, 263 [1st Dept 2006]).