Opinion
December 11, 1981
Present — Dillon, P.J., Simons, Hancock, Jr., Denman and Schnepp, JJ.
Determination unanimously confirmed and petition dismissed, without costs. Memorandum: In this proceeding pursuant to section 298 Exec. of the Executive Law, petitioner seeks an order annulling the decision of the Human Rights Appeal Board which affirmed the decision and order of the State Division of Human Rights dismissing her complaints, which alleged that respondent hospitals retaliated against her, in violation of subdivision 7 of section 296 Exec. of the Executive Law. The commissioner's findings of fact must be deemed conclusive since they are supported by sufficient evidence on the record considered as a whole (Executive Law, § 298; State Div. of Human Rights v City of Syracuse, 57 A.D.2d 452, affd on opn below 43 N.Y.2d 958). The record amply supports the finding that the decision of St. Mary's Hospital not to hire petitioner was a business decision unrelated to petitioner's human rights complaint against Genesee Hospital. Also, the commissioner did not act improperly in crediting the testimony of the Genesee Hospital representative, as opposed to the testimony of petitioner and the inferences petitioner draws from the other evidence in the case. The commissioner, and not the appeal board or this court, weighs the evidence and chooses between conflicting testimony (see Matter of Collins v Codd, 38 N.Y.2d 269, 270). The conclusion of the commissioner that Genesee Hospital provided [St. Mary's Hospital] a fair and true evaluation of petitioner as an employee and that the references to petitioner's skills and traits were not retaliatory may be "extracted reasonably — probatively and logically" from the proof within the whole record which establishes a rational basis for the finding of fact ( 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 N.Y.2d 176, 181). "[T]he commissioner's decision must prevail if it is supported by substantial evidence and it is supported by substantial evidence as long as it rests upon `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion'. The choice of which conflicting evidence to accept lies with the commissioner and his finding is supported by the evidence `and is conclusive where others might reasonably make the same choice'" ( State Div. of Human Rights v City of Syracuse, 57 A.D.2d 452, 455, supra).