Opinion
April 4, 2000.
Determination of respondent Department of Consumer Affairs, dated June 29, 1998, which found petitioner in violation of Title 20 of the Administrative Code of the City of New York and Title 6 of the Rules of the City of New York and thereupon revoked petitioner's home improvement contractor license and ordered it to make restitution in the amount of $34,777.39 and pay fines totaling $400, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Jane Solomon, J.], entered on or about September 3, 1999), dismissed, without costs.
Donald H. Greener, for Petitioner.
Jane L. Gordon, for Respondents.
SULLIVAN, P.J., NARDELLI, TOM, MAZZARELLI, WALLACH, JJ.
There is no basis to disturb respondent's determination, premised largely on its assessment of witness credibility, that petitioner failed to comply with the parties' settlement agreement, and thus exposed itself to penalties, including the reinstatement of prior charges and revocation of its home improvement contractor license (see, Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444). Petitioner's claim that that the ALJ was biased, incompetent in her rulings and without understanding of basic law, is not supported by the record. Although petitioner was entitled to unbiased agency decision-making, the mere allegation of bias will not suffice. "There must be a factual demonstration to support the allegation of bias and proof that the outcome flowed from it" (Matter of Warder v. Bd. of Regents of the Univ. of the State of New York, 53 N.Y.2d 186, 197, cert denied 454 U.S. 1125). Petitioner's showing satisfied neither of these criteria.
The penalties imposed were not so disproportionate as to shock our sense of fairness, especially since respondent Department of Consumer Affairs has broad discretion in imposing sanctions to protect the public and petitioner was put on notice at the time the settlement was entered into that its failure to comply therewith would result in penalties, including revocation of its license.
Motion granted to the extent of directing that the funds escrowed pursuant to the order of this court entered November 9, 1999 (M-6531) be applied toward petitioner's obligation in restitution.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.