| N.Y. App. Div. | Jan 25, 1965
Proceeding pursuant to article 78 of the CPLR to annul a determination of the Waterfront Commission of New Tork Harbor, made December 11, 1963 after a hearing, which revoked petitioner’s checker’s registration. By order of the Supreme Court, Kings County, made May 29, 1964 pursuant to statute (CPLR 7804, subd. [g]), the proceeding has been transferred to this Court for disposition. Determination confirmed, without costs. No opinion. Beldoek, P. J., Ughetta and Rabin, JJ., concur; Christ and Hill, JJ., dissent and vote to annul the determination and to reinstate .the petitioner’s registration, with the following memorandum: The commission declined to follow the recommendation of its own hearing officer with respect to the disposition here. In its memorandum decision it conceded that the ease turned entirely upon the testimony of one Perretti — a thrice— convicted felon who admitted to many lies and inconsistencies. Only the trial jury in the District Count of the United States saw and heard both the witness Perretti and the petitioner. It 'found the testimony of the Government’s witness Perretti to he incredible, and it gave credence to the petitioner, who was acquitted of crimes related to the reasons for the revocation here. Perretti did ¡not appear at the commission hearing but, by stipulation, his testimony at the Federal trial was put into the present record. In our opinion, his testimony is inconsistent, questionable and incredible as a matter of law; and if it be disregarded (as it should) ¡the determination cannot stand, for all that then remains is bare suspicion.