Bielecki v. Perales

Proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent Cesar A. Perales, Commissioner of the New York State Department of Social Services, dated February 8, 1989, which, after a hearing, found that the petitioner was operating an "adult care facility” without an operating certificate in violation of Social Services Law § 460-b (1), and assessed a fine against him of $1,000 per day for the operation of the facility. Ordered that the determination is confirmed, and the proceeding is dismissed on the merits, with costs. Upon our review of the record we conclude that there is substantial evidence to support the finding that the petitioner was operating an "adult care facility”. Several of the current residents of the petitioner’s facility were shown to have been "unable or substantially unable to live independently” (Social Services Law § 2 [21]; Matter of Pell v Board of Educ., 34 NY2d 222). The petitioner points out that two doctors testified at the hearing that the prognosis had changed for the residents and that all could live independently. However, the Administrative Law Judge’s assessment that the doctors’ testimony was incredible was within his province (see, Matter of Amber Rock Pharmacy v Axelrod, 111 AD2d 848). On this record we find no reason to disturb that assessment. In addition, we cannot say that the penalty imposed is so disproportionate to the offense as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., supra). We have reviewed the petitioner’s remaining contentions and find them to be without merit. Bracken, J. P., Brown, Lawrence and Kooper, JJ., concur.