Dearmas v. Coughlin

In a proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the New York State Department of Correctional Services, dated December 16, 1991, which affirmed a decision of a Hearing Officer dated October 23, 1991, made after a Tier III superintendent’s hearing, finding that the petitioner had violated 7 NYCRR 270.2 (B) (2) (ii) and imposing penalties, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Hillery, J.), dated June 8, 1992, which dismissed the proceeding. Ordered that the appeal is dismissed, without costs or disbursements, and the judgment is vacated (see, Matter of Scorpio Car Serv. v New York City Taxi & Limousine Commn., 171 AD2d 872; Matter of Davidson v Scully, 116 AD2d 575); and it is further, Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements. This proceeding raises an issue of whether the determination sought to be reviewed is supported by substantial evidence (see, CPLR 7803 [4]) and, therefore, should have been transferred to this Court for determination in the first instance (see, CPLR 7804 [g]; Matter of Scorpio Car Serv. v New York City Taxi & Limousine Commn., supra; Matter of Davidson v Scully, supra). [774] Upon our de novo review of the record, we find that there is substantial evidence in the record to support the challenged determination (see, Matter of Davidson v Scully, supra; compare, Matter of Acevedo v Hernandez, 143 AD2d 417). The petitioner’s remaining contentions are without merit. Mangano, P. J., Balletta, O’Brien, Hart and Florio, JJ., concur.