Opinion
Decided December 1, 1983
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department.
Warren H. Richmond, III, for appellant.
Lester B. Lipkind for respondent.
MEMORANDUM.
The judgment of the Appellate Division should be reversed, with costs, and the matter remitted to that court for consideration of the appropriate penalty.
Judicial review of administrative determinations made as the result of a hearing required by law is limited to a consideration of whether that resolution is supported by substantial evidence ( 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 N.Y.2d 176, 181). Notwithstanding petitioner's testimony that her dismissal was motivated by bad faith on the part of her supervisor, the supervisor's testimony of her poor job performance and insubordination and the exhibits of her work provided substantial evidence to support the charges leading to her dismissal. It was for the board to weigh the conflicting evidence of motive and assess the credibility of the witnesses, not the Appellate Division ( Matter of Stork Rest. v Boland, 282 N.Y. 256, 267). It was also within the board's competence to determine whether the evidence established dereliction sufficient to support the charge of poor job performance.
Finally, as to the penalty imposed, the matter is remitted to the Appellate Division for its consideration.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), judgment reversed, with costs, and matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.