Opinion
February 27, 1995
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
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; Matter of Pell v. Board of Educ., 34 N.Y.2d 222). The petitioner's contention that the determination of the respondent, the New York State Liquor Authority, was not supported by substantial evidence is without merit. The resolution of credibility issues, within the scope of the instant administrative hearing, was primarily within the province of the respondent agency (see, Matter of Di Maria v Ross, 52 N.Y.2d 771), and this Court "may not substitute its own judgment for that of an administrative agency on the question of credibility" (Matter of Tego's Tavern v. New York State Liq. Auth., 158 A.D.2d 900, 901).
In addition, we reject the petitioner's assertion that it was substantially prejudiced because the proposed findings and opinion were issued by someone other than the original Hearing Officer when that officer was unable to do so within 30 days of the hearing (see, 9 NYCRR 54.4 [i]; Matter of New York Pan Pizza Corp. v. New York State Liq. Auth., 150 A.D.2d 694; Matter of Kelly v. Duffy, 144 A.D.2d 792; Matter of Romanski v McLaughlin, 85 A.D.2d 827).
The penalty imposed was not so disproportionate to the offense committed as to be shocking to one's sense of fairness (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222; Matter of We Rest. v. New York State Liq. Auth., 175 A.D.2d 165). Pizzuto, J.P., Santucci, Friedmann and Krausman, JJ., concur.