Nieto v. DeBuono

Sep 16, 1996
Versions:231 A.D.2d 573
647 N.Y.S.2d 282
1996 N.Y. App. Div. LEXIS 9250

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York State Department of Health, dated January 10, 1995, which, after a hearing, sustained a charge of physical abuse against the petitioner, and imposed a civil penalty.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

Contrary to the petitioner’s contention, the determination of the Commissioner of the New York State Department of Health is supported by substantial evidence in the record (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180), including the testimony of the nursing home resident abused by the petitioner, three witnesses who spoke with the resident shortly after the incident, and an additional witness to whom the petitioner made a partial admission. While the Administrative Law Judge who conducted the hearing made a contrary recommendation, the Commissioner was not bound thereby and was free to make different or additional factual and credibility findings as long as substantial evidence supported the determination (see, Matter of Simpson v Wolansky, 38 NY2d 391; Matter of Damianos v Axelrod, 186 AD2d 564; Matter of Carangelo v Ambach, 130 AD2d 898). Furthermore, although much of the evidence adduced at the hearing consisted of hearsay, it is well settled that hearsay evidence is admissible in administrative proceedings and may serve as the basis for an administrative determination (see, Matter of Gray v Adduci, 73 NY2d 741; People ex rel. Vega v Smith, 66 NY2d 130; Matter of Andresen v State of N. Y. Dept. of Motor Vehicles, 227 AD2d 617).

We have considered the petitioner’s remaining challenges to the determination and find them to be without merit. Miller, J. P., Pizzuto, Joy and McGinity, JJ., concur.