IN RE: GENOVESE DRUG STORES (2008)

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Brian L. Harper, M.D., MPH, Commissioner of the Department of Health Services, County of Suffolk, dated June 16, 2006, which affirmed three decisions of a hearing officer of the Department of Health Services, County of Suffolk, each dated April 18, 2006, made after hearings, finding that the petitioner violated Public Health Law § 1399-cc(3) at three of its individual stores by selling cigarettes to minors, and imposed a penalty.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

 Judicial review of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence (see Matter of Jennings v. New York State Off. of Mental Health, 90 N.Y.2d 227, 239, 660 N.Y.S.2d 352, 682 N.E.2d 953).   Substantial evidence has been defined as “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).   Moreover, “ ‘[t]he courts may not weigh the evidence or reject the choice made by [an administrative agency] where the evidence is conflicting and room for choice exists' ” (Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 444, 522 N.Y.S.2d 478, 517 N.E.2d 193, quoting Matter of Stork Rest. v. Boland, 282 N.Y. 256, 267, 26 N.E.2d 247).

 Here, the respondent Department of Health Services, Suffolk County (hereinafter the DOH) presented the testimony of several investigators, who testified that, during the course of three separate “sting” operations, they personally witnessed the petitioner's employees sell cigarettes to persons they knew to be under the age of 18.   The DOH further submitted the birth certificates of the three minors involved, as proof that they were under the age of 18 at the time of the transactions.   Contrary to the petitioner's contention, this constituted substantial evidence that the petitioner violated Public Health Law § 1399-cc(3) (cf. Matter of Hoch v. New York State Dept. of Health, 1 A.D.3d 994, 768 N.Y.S.2d 53).

The petitioner's remaining contentions are without merit.