Pierino v. Brown

Order unanimously vacated without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Petitioner commenced this CPLR article 78 proceeding to challenge the determination of respondent Commissioner of General Services that petitioner was in violation of Buffalo City Code § 35-6. Supreme Court erred in transferring the proceeding to us pursuant to CPLR 7804 (g). The charges against petitioner were brought by respondent City of Buffalo under article 22 of the collective bargaining agreement, which required the appointment of a Hearing Officer and a hearing on the charges. Petitioner purports to raise a substantial evidence issue, which would warrant a transfer of the proceeding to this Court (see, CPLR 7804 [g]). That issue is raised only if an administrative hearing is “required by law” (Matter of Incorporated Vil. of Valley Stream v State of New York Pub. Serv. Commn., 107 AD2d 856, 857), however, and here it was not. “Since the hearing was mandated by the [collective bargaining] agreement and not by Civil Service Law § 75, the ‘substantial evidence’ standard of review does not apply and the ‘arbitrary and capricious’ standard is appropriate * * * Consequently, the proceeding was erroneously transferred to this [C]ourt” (Matter of Marin v Benson, 131 AD2d 100, 103). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Erie County, Rath, Jr., J.) Present — Pine, J. P., Hayes, Hurlbutt, Scudder and Lawton, JJ.