Hearsay is admissible in administrative proceedings and, if sufficiently relevant and probative, may constitute substantial
evidence
Szczepaniak v City of Rochester, 2012 NY Slip Op 08896, Appellate Division, Fourth Department
Szczepaniak v City of Rochester, 2012 NY Slip Op 08896, Appellate Division, Fourth Department
The City of Rochester determined that one of its employees was
guilty of the disciplinary charges filed against him and terminating him from
his employment. Supreme court dismissed the individual's Article 78 petition challenging his
dismissal and the Appellate Division affirmed the lower court’s ruling.
One of the arguments advanced by the individual in his petition was that “the
determination is not supported by substantial evidence because the evidence
presented was hearsay.“*
The Appellate Division, noting that the hearsay evidence admitted at the administrative hearing consisted of attendance records about individual’s outside employment,
ruled that the evidence was relevant and probative on the charges that the individual had worked at
that outside employment while he was on sick leave, or other leave from his
employment with the City, and receiving certain benefits.
The court explained that hearsay is admissible
in administrative proceedings "and if sufficiently relevant and probative
may constitute substantial evidence." Accordingly, said the Appellate Division, there
is no merit to the individual's contention that the determination is not
supported by substantial evidence because the evidence presented was hearsay.
Citing Pell v Board of Educ. of Union Free School Dist. No.
1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the
Appellate Division said that it found that the appointing authorities
determination as to the employees guilt was “supported by substantial evidence,
i.e., "such relevant proof as a reasonable mind may accept as adequate to
support a conclusion or ultimate fact."
As to the penalty imposed, dismissal, the court said that it
concluded that “the penalty of termination from petitioner's employment is not ‘so
disproportionate to the offense[s] as to be shocking to one's sense of fairness,’
and thus does not constitute an abuse of discretion as a matter of law,” citing
Kelly v Safir, 96 NY2d 32.
* Essentially hearsay evidence is testimony given by an individual who testifies
about what he or she has heard from others rather than testifies about that which
he or she personally heard, knows or observed concerning a conversation, an event or a situation.
The decision is posted on the Internet at:
