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February 21, 2014

Hearsay evidence alone may constitute substantial evidence in an administrative hearing

Hearsay evidence alone may constitute substantial evidence in an administrative hearing
2013 NY Slip Op 08169, Appellate Division, Third Department

The arbitrator dismissed disciplinary charges filed against the employee. While the arbitration was pending, the employee’s supervision lodged a complaint against employee alleging violations of certain canons of ethics relevant to the employee maintaining required credentials.

Following a hearing, Hearing Officer recommended that employee’s credentials be revoked, which recommendation the responsible Commissioner accepted and revoked the employee’s credentials. This resulted in the employee’s termination because he now lacked the required certification to be employed in the position. The employee filed an Article 78 petition challenging the Commission’s action.

The Appellate Division annulled the Commissioner’s decision, explaining that there was “serious doubt” concerning the credibility of the employee's accusers and, for that reason, the court did not find that the hearsay evidence presented at the hearing to be sufficiently reliable to support the Commissioner’s determination revoking the employee’s credentials.

Characterizing the primary issue in the appeal as the employee’s complaint that the Commission’s action was not supported by substantial evidence in the record as a whole and “specifically, that the hearsay evidence adduced at the hearing was insufficient to establish the alleged ethical violations,” the Appellate Division explored the terms “substantial evidence” and “hearsay evidence.”

Substantial evidence, said the court, has long been defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact”, citing Matter of Berenhaus v Ward, 70 NY2d 436, and other decisions.

The Appellate Division then noted that an administrative determination may be based entirely upon hearsay evidence “provided such evidence is ‘sufficiently relevant and probative’ or ‘sufficiently reliable’ and is not otherwise ‘seriously controverted.’"

The decision is posted on the Internet at:

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