IN RE: ROBERT QUINTANA (2014)

MEMORANDUM AND ORDER

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Erie County [Patrick H. NeMoyer, J.], entered April 15, 2013) to annul a determination finding that petitioner was capable of returning to his employment as a police officer in a light-duty capacity.

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

We note at the outset Supreme Court should have transferred the entire proceeding to this Court, rather than first disposing of certain contentions of petitioner.   The amended petition raises a substantial evidence question, and the remaining points made by petitioner are not objections that could have terminated the proceeding within the meaning of CPLR 7804(g) (see Matter of Putnam Cos. v. Shah, 93 AD3d 1315, 1316, lv denied 19 NY3d 811;  Matter of Wynne v. Town of Ramapo, 286 A.D.2d 338, 339).   Nonetheless, because the record is now before us, we will “treat the proceeding as if it had been properly transferred here in its entirety” (Wynne, 286 A.D.2d at 339), and review petitioner's contentions de novo (see Putnam Cos., 93 AD3d at 1316;  Matter of Brunner v. Bertoni, 91 AD3d 1100, 1102 n).

With respect to petitioner's remaining contentions, we conclude that the Hearing Officer's determination that petitioner was able to return to work in a light-duty capacity is supported by substantial evidence (see Matter of Clouse v. Allegany County, 46 AD3d 1381, 1381–1382;  Matter of Chadha v. County of Nassau, 248 A.D.2d 465, 466;  Matter of Flynn v. Pease, 242 A.D.2d 331, 331–332).  “Substantial evidence ‘means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’ “ (Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 N.Y.2d 326, 331, quoting 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180;  see Matter of Lundy v. City of Oswego, 59 AD3d 954, 955).  “A reviewing court in passing upon this question of law may not substitute its own judgment of the evidence for that of the administrative agency, but should review the whole record to determine whether there exists a rational basis to support the findings upon which the agency's determination is predicated” (Matter of Purdy v. Kreisberg, 47 N.Y.2d 354, 358;  see Chadha, 248 A.D.2d at 466–467).

exists' “ (Clouse, 46 AD3d at 1382, quoting Matter of CUNY–Hostos Community Coll. v State Human Rights Appeal Bd., 59 N.Y.2d 69, 75;  see Matter of Hill v New York State & Local Retirement Sys., 295 A.D.2d 802, 802–803).

Contrary to the contention of petitioner, the record reflects that both respondent's expert and the Hearing Officer considered the specific duties of a camera monitor and petitioner's ability to perform those duties.   The police captain who oversees the surveillance room testified in detail about the duties of a camera monitor, the camera monitor job description was received in evidence at the hearing, and the Hearing Officer conducted a site visit to the surveillance room.   With respect to petitioner's contention that the Hearing Officer failed to consider the impact of petitioner's medications on his ability to perform the duties of a camera monitor, we note that petitioner submitted no evidence at the hearing that his medications rendered him unable to perform the position at issue (see Flynn, 242 A.D.2d at 332).   Although respondent's expert testified that two of petitioner's medications could potentially affect alertness, he further testified that petitioner had been taking those medications for so long that he did not expect any problems with petitioner's ability to perform the duties of a camera monitor (see generally id. at 331–332).

Frances E. Cafarell

Clerk of the Court