Opinion
June 22, 1998
Appeal from the Supreme Court, Nassau County (Ain, J.).
Ordered that the order is affirmed; and it is further,
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits; and it is further,
Ordered that the respondents are awarded one bill of costs.
The petitioner contends that the determination should be annulled because the Village Mayor, who testified against him at the disciplinary hearing, participated in reviewing the Hearing Officer's recommendation. However, there is no evidence in the record that the Mayor participated in the Board of Trustees' review process. Accordingly, the Supreme Court properly concluded that the petitioner was not denied an independent appraisal of the disciplinary proceeding ( cf., Matter of Ernst v. Saratoga County, 234 A.D.2d 764; Matter of Lowy v. Carter, 210 A.D.2d 408).
Furthermore, it is well settled that in order to annul an administrative determination made after a hearing, a court must conclude that the record lacks substantial evidence to support the determination ( see, Matter of Lahey v. Kelly, 71 N.Y.2d 135, 140; Matter of LaCanfora v. Lloyd, 229 A.D.2d 496). Contrary to the petitioner's contention, the hearing record supports the Board's finding that he committed acts of misconduct, which included committing the criminal offense of driving while intoxicated as a felony, driving Village-owned vehicles with a revoked license, and taking an unauthorized leave of absence ( see, Matter of Telesco v. Village of Port Chester, 211 A.D.2d 723).
Finally, the penalty of dismissal was not so disproportionate to the offenses as to be shocking to one's sense of fairness ( see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222).
Mangano, P. J., Bracken, Krausman and McGinity, JJ., concur.