Opinion
March 4, 1999
Appeal from the Supreme Court, New York County (Louise Gruner Gans, J.).
Respondent's finding that petitioner struck the complainant in the face with a gun is supported by substantial evidence, including the testimony of the complainant, two eyewitnesses to the incident, and the complainant's treating dentist, who confirmed the complainant's injury ( see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 179-180). To the extent that petitioner presented a different account of the events, we note that credibility determinations are the province of the Hearing Officer ( see, Matter of Pesante v. Abate, 211 A.D.2d 504, 505).
As to the subsequent petition to reopen the disciplinary proceedings, we agree with Supreme Court that the Hearing Examiner's decision not to reopen the hearing based on alleged newly discovered evidence was not arbitrary and capricious. The statement of the purportedly exculpatory witness was not, in the exercise of diligence, unavailable to petitioner at the time of the hearing, and the Hearing Examiner's determination that the witness's equivocal statement would, in any event, probably not have changed the result finds support in the record ( see, Olwine, Connelly, Chase, O'Donnell Weyher v. Valsan, Inc., 226 A.D.2d 102, 103).
Concur — Nardelli, J. P., Lerner, Mazzarelli and Saxe, JJ.