Opinion
2017–06290 Index No. 1365/17
08-19-2020
In the Matter of Brian NOONAN, Petitioner, v. David E. CHONG, etc., et al., Respondents.
Tarter Krinsky & Drogin LLP, New York, N.Y. (Anthony D. Dougherty and Law Offices of Gerard Bilotto, P.C., of counsel), for petitioner. Lamb & Barnosky, LLP, Melville, N.Y. (Richard K. Zuckerman, Alyson Mathews, and Matthew J. Mehnert of counsel), for respondents.
Tarter Krinsky & Drogin LLP, New York, N.Y. (Anthony D. Dougherty and Law Offices of Gerard Bilotto, P.C., of counsel), for petitioner.
Lamb & Barnosky, LLP, Melville, N.Y. (Richard K. Zuckerman, Alyson Mathews, and Matthew J. Mehnert of counsel), for respondents.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.
DECISION & JUDGMENT Proceeding pursuant to CPLR article 78 to review a determination of the City of White Plains Commissioner of Public Safety dated November 9, 2016. The determination adopted the findings and recommendation of a hearing officer dated October 28, 2016, made after a hearing, found the petitioner guilty of certain charges of misconduct, and terminated the petitioner's employment as a firefighter.
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
Judicial review of a determination of an administrative agency in a proceeding of this nature is limited to whether the determination is supported by substantial evidence (see CPLR 7803[4] ; Matter of Wilson v. City of White Plains, 95 N.Y.2d 783, 710 N.Y.S.2d 303, 731 N.E.2d 1111 ; 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 408 N.Y.S.2d 54, 379 N.E.2d 1183 ; Matter of Fortuna v. City of White Plains, 170 A.D.3d 1011, 96 N.Y.S.3d 286 ). Substantial evidence is "less than a preponderance of the evidence" and "demands only that a given inference is reasonable and plausible, not necessarily the most probable" ( Matter of Haug v. State Univ. of N.Y. at Potsdam, 32 N.Y.3d 1044, 1045–1046, 87 N.Y.S.3d 146, 112 N.E.3d 323 [internal quotation marks omitted] ). "Where substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently" ( id. at 1046, 87 N.Y.S.3d 146, 112 N.E.3d 323 ). "Where substantial evidence exists to support a decision being reviewed by the courts, the determination must be sustained, irrespective of whether a similar quantum of evidence is available to support other varying conclusions" ( id. ). "It is the function of the administrative agency, not the reviewing court, to weigh the evidence, assess the credibility of witnesses, and determine which testimony to accept and which to reject. Where evidence is conflicting and room for choice exists, a reviewing court may not weigh the evidence or reject the choice made by the administrative agency" ( Matter of Mundinger v. Smithtown Cent. Sch. Dist., 152 A.D.3d 607, 607, 59 N.Y.S.3d 62 [citations omitted] ).
Here, the determination that the petitioner committed certain acts of misconduct is supported by substantial evidence and therefore may not be set aside (see Matter of Bosch v. City of Middletown, N.Y., 127 A.D.3d 855, 4 N.Y.S.3d 898 ; Matter of Mason v. Board of Fire Commrs. of Jericho Fire Dist., 73 A.D.3d 928, 900 N.Y.S.2d 148 ; Matter of Guerrero v. Scoppetta, 53 A.D.3d 615, 862 N.Y.S.2d 104 ). The penalty of termination of employment was not so disproportionate to the offenses as to be shocking to one's sense of fairness (see Matter of Loscuito v. Scoppetta, 50 A.D.3d 905, 854 N.Y.S.2d 667 ).
Contrary to the petitioner's contention, the record demonstrates that the hearing was conducted in a fair and impartial manner and that the determination was not the result of any alleged bias on the part of the hearing officer (see Matter of Mays v. Early, 178 A.D.3d 928, 929, 115 N.Y.S.3d 393 ).
BALKIN, J.P., LEVENTHAL, MALTESE and IANNACCI, JJ., concur.