Adams v. Novello

—Determination of respondent State Department of Health, dated October 13, 1999, that petitioner, a certified nurse’s aide, neglected a nursing home resident, unanimously confirmed, the petition denied and the 177 proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Leland DeGrasse, J.], entered on or about April 4, 2000), dismissed, without costs. The determination of neglect within the meaning of 10 NYCRR 81.1 (c) is supported by substantial evidence (see, Matter of Carrera v Sobol, 163 AD2d 706, 708, affd 77 NY2d 931; Matter of Kirschner v Mills, 274 AD2d 786, 789), in particular, the testimony of three witnesses that petitioner admitted that he failed to provide the resident with appropriate care. No basis exists to disturb the Administrative Law Judge’s findings of credibility with respect to this testimony (see, Matter of Berenhaus v Ward, 70 NY2d 436, 443-444). We have considered and rejected petitioner’s argument that the Administrative Law Judge applied an incorrect substantial evidence, rather than the correct preponderance of the evidence, standard. Concur — Rosenberger, J. P., Nardelli, Tom, Wallach and Saxe, JJ.