IN RE: John PHELPS (2022)

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of the New York State Unified Court System dated May 9, 2019.  The determination adopted the findings and recommendation of a hearing officer dated March 15, 2019, made after a hearing, that the petitioner was guilty of certain charges of misconduct, and terminated the petitioner's employment as a court reporter.

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

The petitioner was employed as a court reporter by the New York State Unified Court System (hereinafter UCS) from approximately 1998 until his employment was terminated on or about May 9, 2019.  At all times relevant to this proceeding, the petitioner was employed as a Principal Court Reporter.  On or about March 28, 2018, a notice of charges was filed against the petitioner, alleging that he had engaged in specified acts of misconduct, including a failure to perform the duties and responsibilities of his job title and abuse of authority.  The petitioner denied the charges.

At a hearing in December 2018, the petitioner and several other UCS employees testified.  At the conclusion of the hearing, by report and recommendation dated March 15, 2019, a hearing officer found the petitioner guilty of each specified act of misconduct and recommended that the petitioner be terminated from his position.  In a determination dated May 9, 2019, Deputy Chief Administrative Judge George J. Silver adopted the hearing officer's findings and recommendation, found the petitioner guilty of the specified misconduct, and terminated the petitioner from his position.  The petitioner commenced the instant CPLR article 78 proceeding to review the determination.  The proceeding was transferred to this Court pursuant to CPLR 7804(g).

In a proceeding pursuant to CPLR article 78, judicial review of a determination made by an administrative agency following an evidentiary hearing pursuant to direction by law is limited to whether the determination is supported by substantial evidence (see id. § 7803[4];  Matter of Noonan v. Chong, 186 A.D.3d 713, 714, 127 N.Y.S.3d 305;  Matter of Gibbons v. New York State Unified Ct. Sys., Off. of Ct. Admin., 78 A.D.3d 942, 943, 911 N.Y.S.2d 169).  Substantial evidence is “less than a preponderance of the evidence” and “demands only that a given inference is reasonable and plausible, not necessarily the most probable” (Matter of Haug v. State Univ. of N.Y. at Potsdam, 32 N.Y.3d 1044, 1045–1046, 87 N.Y.S.3d 146, 112 N.E.3d 323 [internal quotation marks omitted];  see Matter of Noonan v. Chong, 186 A.D.3d at 714, 127 N.Y.S.3d 305).  “Where substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently” (Matter of Haug v. State Univ. of N.Y. at Potsdam, 32 N.Y.3d at 1046, 87 N.Y.S.3d 146, 112 N.E.3d 323;  see Matter of Noonan v. Chong, 186 A.D.3d at 714, 127 N.Y.S.3d 305).  “It is the function of the administrative agency, not the reviewing court, to weigh the evidence or assess the credibility of the witnesses” (Matter of Bullock v. State of N.Y. Dept. of Social Servs., 248 A.D.2d 380, 382, 669 N.Y.S.2d 618;  see Matter of Brentwood Union Free Sch. Dist. v. Kirkland, 126 A.D.3d 898, 900, 5 N.Y.S.3d 519).

Here, any credibility issues were resolved by the hearing officer, and substantial evidence in the record supports the determination that the petitioner was guilty of the specified acts of misconduct (see Matter of Haug v. State Univ. of N.Y. at Potsdam, 32 N.Y.3d at 1045–1046, 87 N.Y.S.3d 146, 112 N.E.3d 323;  Matter of Noonan v. Chong, 186 A.D.3d at 714, 127 N.Y.S.3d 305;  Matter of Cupo v. Uniondale Fire Dist., 181 A.D.3d 594, 595, 121 N.Y.S.3d 271).  The penalty of termination of employment was not so disproportionate to the offenses as to be shocking to one's sense of fairness (see Matter of Rutkunas v. Stout, 8 N.Y.3d 897, 898, 834 N.Y.S.2d 73, 865 N.E.2d 1239;  Matter of Gibbons v. New York State Unified Ct. Sys., Off. of Ct. Admin., 78 A.D.3d at 943, 911 N.Y.S.2d 169).

DILLON, J.P., MALTESE, WOOTEN and GENOVESI, JJ., concur.