IN RE: Vittoria FRUCI (2008)

 Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination that respondent was not required to sponsor her attendance at the Canadian College of Osteopathy (College).   Petitioner contends that the determination that her attendance at the College is inconsistent with her abilities is not supported by substantial evidence, i.e., “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183;  see People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997).   We reject that contention (see generally Matter of Murphy v. Office of Vocational & Educ. Servs. for Individuals with Disabilities, N.Y. State Educ. Dept., 92 N.Y.2d 477, 482, 683 N.Y.S.2d 139, 705 N.E.2d 1180).   The Hearing Officer relied upon a functional capacity evaluation (FCE) indicating that petitioner's disabilities were inconsistent with a position as an osteopath, and the FCE constitutes substantial evidence supporting the determination.  “[I]t is not for [this Court] to substitute its judgment for that of [the Hearing Officer]” (Matter of Shorts Bar of Rochester Inc. v. New York State Liq. Auth., 17 A.D.3d 1101, 1102, 794 N.Y.S.2d 266).   Contrary to the further contention of petitioner, the Hearing Officer was not required to accept the opinion of her treating physician (see Matter of Williams v. Wing, 259 A.D.2d 1043, 688 N.Y.S.2d 347).

It is hereby ORDERED that the determination is unanimously confirmed without costs and the amended petition is dismissed.

MEMORANDUM: