IN RE: Dennis SCHINDLAR

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

IN RE: Dennis SCHINDLAR, petitioner, v. INCORPORATED VILLAGE OF LLOYD HARBOR, et al., respondents.

Decided: May 24, 1999

THOMAS R. SULLIVAN, J.P., GABRIEL M. KRAUSMAN, ANITA R. FLORIO and NANCY E. SMITH, JJ. Louis D. Stober, Jr., LLC, Garden City, N.Y., for petitioner. Putney, Twombly, Hall & Hirson, New York, N.Y. (Thomas B. Wassel and Mark A. Hernandez of counsel), for respondent Incorporated Village of Lloyd Harbor. Robert J. Cimino, County Attorney, Hauppauge, N.Y. (Theodore D. Sklar of counsel), for respondent Suffolk County Department of Civil Service.

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Suffolk County Department of Civil Service, dated April 8, 1998, which, after a hearing, revoked the petitioner's certification and appointment as a Police Officer in the Incorporated Village of Lloyd Harbor and terminated his employment.

ADJUDGED that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements.

 Contrary to the petitioner's contentions, we find that the determination of the Suffolk County Department of Civil Service (hereinafter the DCS) that he perpetrated a fraud in claiming residency in the Incorporated Village of Lloyd Harbor was supported by substantial evidence.   The petitioner presented evidence that he resided in Lloyd Harbor, including copies of his driver's license and voter registration cards, as well as hearing testimony by the owner of the property on which the petitioner allegedly resided.   The Hearing Officer, however, credited the persuasive documentary evidence to the contrary.   It is well established that a reviewing court may not weigh evidence or reject the choice made by the Hearing Officer, especially where there is conflicting evidence and room for choice exists (see, Matter of McQueeney v. Dutchess County Sheriff, 223 A.D.2d 710, 637 N.Y.S.2d 429;  Matter of Moorehead v. New York City Tr. Auth., 147 A.D.2d 569, 537 N.Y.S.2d 862).   There is substantial evidence in the record to sustain a finding that the petitioner did not in fact reside in Lloyd Harbor from June 1994 to January 1995.   Therefore the Hearing Officer's recommendation and the determination of the DCS to revoke the petitioner's certification and appointment should not be disturbed (see, 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 408 N.Y.S.2d 54, 379 N.E.2d 1183;  Matter of Butler v. Nassau County Civ. Serv. Commn., 175 A.D.2d 159, 572 N.Y.S.2d 50;  Matter of Magrella v. Nassau County Civ. Serv. Commn., 124 A.D.2d 660, 507 N.Y.S.2d 837).

 In addition, there was no evidence in the record to support the petitioner's contention that the Hearing Officer was biased, nor was there any evidence that the outcome flowed from any alleged bias on the part of the Hearing Officer (see, Matter of Hughes v. Suffolk County Dept. of Civ. Serv., 74 N.Y.2d 833, 546 N.Y.S.2d 335, 545 N.E.2d 625;  Matter of Warder v. Board of Regents of Univ. of State of N.Y., 53 N.Y.2d 186, 440 N.Y.S.2d 875, 423 N.E.2d 352;  Matter of Wood v. Cosgrove, 237 A.D.2d 616, 655 N.Y.S.2d 1004;  Matter of Bell v. Cosgrove, 220 A.D.2d 745, 633 N.Y.S.2d 183).   The mere allegation of bias is insufficient to establish bias (see, Matter of Warder v. Board of Regents of Univ. of State of N.Y., supra).

MEMORANDUM BY THE COURT.

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