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In re Powell v. City of Newburgh

Appellate Division of the Supreme Court of New York, Second Department
Jun 4, 2001
725 N.Y.S.2d 883 (N.Y. App. Div. 2001)

Opinion

Submitted May 8, 2001.

June 4, 2001

Proceeding pursuant to CPLR article 78 to review a determination of the City of Newburgh dated April 20, 2000, which adopted the recommendation of a Hearing Officer, made after a hearing, finding the petitioner guilty of charges of misconduct and incompetency, and terminating his employment as a Motor Equipment Operator for the City of Newburgh, Department of Public Works.

James M. Rose, White Plains, N.Y. (Richard L. Parker of counsel), for petitioner.

Marilyn D. Berson, Corporation Counsel, Newburgh, N.Y., for respondent.

Before: DAVID S. RITTER, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER, STEPHEN G. CRANE, JJ.


DECISION JUDGMENT

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

On March 14, 2000, while the petitioner was on duty as a Motor Equipment Operator for the City of Newburgh, Department of Public Works, he was randomly selected to have his urine tested for the presence of drugs. On March 17, 2000, the City received notification that the petitioner tested positive for cocaine. On March 21, 2000, the City served the petitioner with a notice of discipline alleging three charges of misconduct and one charge of incompetency as a result of the positive drug test. Pursuant to Civil Service Law — 75, a hearing was held at which the petitioner was represented by counsel. In his written Report and Recommendation dated April 17, 2000, the Hearing Officer found the petitioner guilty of the charges contained in the notice of discipline, and recommended that his employment be terminated. By letter dated April 20, 2000, the City Manager found that substantial evidence existed to support the finding of guilt and terminated the petitioner's employment with the City.

The petitioner contends that the Hearing Officer's determination was based upon improperly admitted evidence without which there is no substantial evidence to support the administrative determination. This argument is without merit. The report from the random drug test performed by an outside agency was admissible hearsay evidence (see, Civil Service Law — 75[2]; People ex rel. Vega v. Smith, 66 N.Y.2d 130; Gdanski v. New York City Transit Auth., 166 A.D.2d 590, 591; Lumsden v. New York City Fire Dept., 134 A.D.2d 595, 596). Moreover, findings of fact may be based on hearsay evidence alone (see, Matter of Gray v. Adduci, 73 N.Y.2d 741, 742; Matter of Lumsden v. New York City Fire Dept., supra). The report of the random drug test was sufficiently relevant and probative to constitute substantial evidence supporting the City Manager's administrative determination (see, 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 181; Matter of Andresen v. State of New York Dept. of Motor Vehicles, 227 A.D.2d 617).

The petitioner's remaining contentions are without merit.

RITTER, J.P., FRIEDMANN, H. MILLER and CRANE, JJ., concur.


Summaries of

In re Powell v. City of Newburgh

Appellate Division of the Supreme Court of New York, Second Department
Jun 4, 2001
725 N.Y.S.2d 883 (N.Y. App. Div. 2001)
Case details for

In re Powell v. City of Newburgh

Case Details

Full title:IN THE MATTER OF CLIFTON POWELL, PETITIONER, v. CITY OF NEWBURGH…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 4, 2001

Citations

725 N.Y.S.2d 883 (N.Y. App. Div. 2001)
725 N.Y.S.2d 883

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