IN RE: Application of Leonard MAGGIORE

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of Leonard MAGGIORE, Petitioner, For a Judgment, etc., v. The DEPARTMENT OF BUILDINGS OF THE CITY OF NEW YORK, et al., Respondents.

Decided: May 30, 2002

TOM, J.P., MAZZARELLI, ANDRIAS, SULLIVAN, and FRIEDMAN, JJ. Ann Marie Barbagallo, for Petitioner. Fay Ng, for Respondents.

Determination of the Acting Commissioner of the Department of Buildings, dated June 26, 2000, finding petitioner guilty of specified misconduct and revoking his master plumber's license, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Joan Madden, J.], entered April 12, 2001) dismissed, without costs.

Bearing in mind that “[s]ubstantial evidence need not rise to the level of a preponderance of the evidence, but rather, is ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’ ” (Matter of Romero v. Martinez, 280 A.D.2d 58, 721 N.Y.S.2d 17, quoting 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183), we conclude that the tape-recorded evidence adduced against petitioner at his administrative hearing, including recordings of conversations in which he, respondent's investigators and others participated, was sufficiently substantial to support the Acting Commissioner's findings that petitioner permitted unlicensed plumbers to use his license number in violation of Building Code of the City of New York § 26-138(a);  that he instructed a contractor without a plumbing license how to create the public impression that the contractor was capable of providing licensed plumbing services;  that he instructed an unlicensed plumber how to avoid detection by the Department of Buildings for providing unlicensed plumbing services;  and that he agreed to file plumbing repair applications for work he knew would be performed by an unlicensed plumber who was not employed or supervised by him.   While it is true that the record made at the administrative hearing was subject to various interpretations and that the Administrative Law Judge adopted an interpretation exonerating petitioner, the Acting Commissioner was not bound by the Administrative Law Judge's findings of fact or credibility (see, Matter of Simpson v. Wolansky, 38 N.Y.2d 391, 394, 380 N.Y.S.2d 630, 343 N.E.2d 274;  Matter of Dobrin v. Safir, 272 A.D.2d 134, 708 N.Y.S.2d 608) and was free to reach his own determination, so long as that determination was supported by substantial evidence (see, Matter of Simpson, supra ).

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