MANTIONE v. INSURANCE DEPARTMENT OF STATE OF NEW YORK (2000)

Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Salvatore S. MANTIONE, Petitioner, v. INSURANCE DEPARTMENT OF STATE OF NEW YORK and Neil D. Levin, As Superintendent of Insurance of State of New York, Respondents.

Decided: November 13, 2000

PRESENT: GREEN, J.P., PINE, HAYES, SCUDDER and LAWTON, JJ.

Lawrence J. Vilardo, Buffalo, for petitioner. Victor Paladino, for respondents.

Petitioner commenced this proceeding seeking to vacate or modify the penalty imposed by respondent Superintendent in a disciplinary proceeding. Petitioner admitted that he committed the acts alleged in the charges. Supreme Court acknowledged that neither party raised the issue whether the determination of guilt is supported by substantial evidence but stated that it must “independently analyze the case to decide whether the substantial evidence test is properly applicable”. The court sua sponte determined that transfer was mandated pursuant to CPLR 7803(4) and 7804(g). We disagree. In view of petitioner's admissions, the court erred as a matter of law in finding an issue of substantial evidence. The proceeding should not have been transferred. Thus, we vacate the order and remit the matter to Supreme Court to review the penalty imposed (see, CPLR 7803[3] ).

Order unanimously vacated without costs and matter remitted to Supreme Court for further proceedings.

MEMORANDUM:

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