Opinion
No. TP 07-01829.
March 14, 2008.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Onondaga County [Donald A. Greenwood, J.], entered October 3, 2006) to annul a determination of respondent. The determination revoked petitioner's license to operate a group family daycare home.
KALL AND REILLY, LLP, SYRACUSE (LAURA ESTELA CARDONA OF COUNSEL), FOR PETITIONER.
ANDREW M. CUOMO, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE OF COUNSEL), FOR RESPONDENT.
Present: Scudder, P.J., Centra, Lunn, Fahey and Green, JJ.
It is hereby ordered that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination revoking petitioner's license to operate a group family daycare home. Contrary to petitioner's contention, the determination is supported by substantial evidence ( see generally 300 Gramatan Ave. Assoc., v State Div. of Human Rights, 45 NY2d 176, 181-182). The hearsay evidence presented by respondent was admissible in this administrative proceeding, and it was sufficiently relevant and probative to constitute substantial evidence ( see Matter of Gray v Adduci, 73 NY2d 741, 742; People ex rel. Vega v Smith, 66 NY2d 130, 139; see also Matter of BiCounty Brokerage S. Corp. v State of N.Y. Ins. Dept., 4 AD3d 470). We further conclude that the penalty is not "so disproportionate to the offense as to be shocking to one's sense of fairness" ( Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale Mamaroneck, Westchester County, 34 NY2d 222, 237; see Matter of Kelly v Safir, 96 NY2d 32, 38, rearg denied 96 NY2d 854).