Opinion
November 17, 1994
Appeal from the Supreme Court, Albany County.
Petitioner, who is afflicted with spina bifida, sought vocational services from respondent Office of Vocational and Educational Services for Individuals with Disabilities (hereinafter VESID) in 1990. He was referred to the Rusk Institute of Rehabilitative Medicine at New York University Medical Center (hereinafter IRM) for a full diagnostic and vocational evaluation, which revealed that he had the ability to perform adequately in college but that he needed support services.
In September 1991, petitioner entered college but was unable to remain in the dormitory as he had difficulty in managing his personal hygiene and self-care. He then returned to IRM for special work and personal adjustment training. Due to his failure to address the issues of hygiene and self-care, a nurse from IRM was assigned to work with petitioner once a week from August 1992 through January 1993. As a result of his lack of improvement, petitioner was referred to the Gatehouse Independent Living Rehabilitation and Training Program (hereinafter Gatehouse) in Pennsylvania, an inpatient program focusing on individuals with spina bifida.
Petitioner entered Gatehouse in March 1993 and applied to VESID for payment of his expenses. VESID's denial of petitioner's application was affirmed following a fair hearing on the ground that there were comparable programs available to petitioner in this State. After respondent Deputy Commissioner of VESID declined to review the fair hearing decision, petitioner commenced this CPLR article 78 proceeding challenging the administrative determination and seeking damages.
Initially, because petitioner's third and fourth causes of action seeking damages raise issues that have not been fully developed in the record and are beyond the parameters of a CPLR article 78 proceeding, we shall sever these causes of action (see, Davidson v. Capuano, 792 F.2d 275; D.B.C.G., Inc. v. Town of Ramapo, 99 A.D.2d 502; Matter of Leisner v. Bahou, 97 A.D.2d 860, appeal dismissed 61 N.Y.2d 985, appeal dismissed in part and denied in part 62 N.Y.2d 940, cert denied 469 U.S. 1087).
When, as here, an agency determination is made following an evidentiary hearing, the determination must be upheld if supported by substantial evidence (see, Matter of Bevacqua v Sobol, 176 A.D.2d 1, 3). Substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 N.Y.2d 176, 180).
The record shows that VESID is precluded from providing out-of-State training except where the client needs a special program or training which is not available in this State (see, 8 NYCRR 247.13 [l] [vi] [a]). VESID established that the exception was not applicable here through the testimony of its regional coordinator, who stated that there were vocational programs available in New York, particularly at IRM and at Westchester Independent Living Center, that were equivalent to the program at Gatehouse. While petitioner presented countervailing testimony to the effect that the Gatehouse program had no counterpart in New York, the duty of weighing the evidence and resolving issues of credibility rests solely within the province of the administrative agency and we may not reject its choice (see, Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 444; Matter of Gatto v. Adduci, 182 A.D.2d 760). Thus, applying the appropriate criteria to this record, we shall confirm respondents' determination as we find that it is supported by substantial evidence.
We note that petitioner attempts to rely on evidence submitted after the fair hearing to VESID's Deputy Commissioner. As there is no basis for supplementing the record if the Deputy Commissioner declines to review a fair hearing decision (see, 8 NYCRR 247.3 [o] [1]; see also, 29 U.S.C. § 722 [d] [3] [B]), our review is limited to the record developed at the fair hearing (see, Matter of Mott v. New York State Div. of Hous. Community Renewal, 191 A.D.2d 566).
Cardona, P.J., Casey and Yesawich Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, the first and second causes of action in the petition are dismissed, and the third and fourth causes of action in the petition are severed and converted into a plenary action.