ARIA CONTRACTING CORPORATION v. McGOWAN (1998)

 Petitioner challenges a determination of the New York State Department of Labor (Department) finding him guilty of violating 14 code violations involving the removal of asbestos (see, 12 NYCRR part 56).   Petitioner admitted most of the violations and, in any event, the testimony of the investigators who described the violations constitutes substantial evidence in support of the determination (see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 181-182, 408 N.Y.S.2d 54, 379 N.E.2d 1183).   Petitioner's excuses for the violations presented an issue of credibility for the Hearing Officer to resolve (see, Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444, 522 N.Y.S.2d 478, 517 N.E.2d 193;  Matter of Collins v. Codd, 38 N.Y.2d 269, 270-271, 379 N.Y.S.2d 733, 342 N.E.2d 524).   Petitioner contends that the proceedings “were biased and prejudicial” because the Hearing Officer excluded two witnesses from testifying.   Those witnesses did not inspect the sites, however, and their testimony would have been irrelevant on the issue whether petitioner violated the rules regarding asbestos removal (see, State Administrative Procedure Act § 306[1] ).   Petitioner asserted that those witnesses were needed to demonstrate discriminatory enforcement, but that claim may not be raised at an administrative hearing (see, Matter of Cannon v. Urlacher, 155 A.D.2d 906, 547 N.Y.S.2d 495;  Matter of Bell v. New York State Liquor Auth., 48 A.D.2d 83, 84, 367 N.Y.S.2d 875).   Finally, in light of the seriousness of the violations and petitioner's previous violations of the rules for asbestos removal, the civil penalty of $34,000 and a two-year license revocation are not so disproportionate to the offense as to be shocking to one's sense of fairness (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321;  Matter of 106 Fulton Assocs. v. City of New York Envtl. Control Bd., 214 A.D.2d 440, 625 N.Y.S.2d 197).

Determination unanimously confirmed without costs and petition dismissed.

MEMORANDUM: