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May 02, 2017

Hearsay testimony may be admitted in evidence in an administrative hearing


Hearsay testimony may be admitted in evidence in an administrative hearing
Demas v City of New York, 2017 NY Slip Op 03267, Appellate Division, First Department

A coach [Coach] of a school basketball team filed an Article 78 petition challenging the unsatisfactory performance rating (U-Rating) he received for the 2012-2013 school year. Supreme Court dismissed Coach's petition and Coach appealed. 

The Appellate Division unanimously affirmed the lower court's ruling, explaining that the determination that Coach's performance was unsatisfactory has a rational basis in the record.

The court said that the record indicated that while under his coaching and supervision, Coach's players "engaged in a pattern of profane and uncontrollable conduct, on and off the court, which included yelling profanities, making offensive hand gestures and aggressively interacting with the crowd during basketball games."

The Appellate Division also noted that on at least one occasion, "security agents had to escort the opposing team from the premises."

One of the issues raised by Coach in his petition was that the hearing officer had relied on "hearsay testimony" in sustaining the U-Rating he was given.

Hearsay testimony is testimony given by an individual who testifies under oath about what he or she has heard from others rather than testifying about that which he or she had personally witnessed. Although typically barred in a criminal trial, hearsay testimony is permitted in an administrative hearing and, if sufficiently relevant and probative, may constitute substantial evidence.*

Citing Paul v NYC Department of Education, 146 AD3d 705, the Appellate Division, rejecting Coach's contention that hearsay testimony should not have been admitted at the hearing, holding that the hearing officer "was entitled to rely on hearsay" in sustaining the U-Rating give Coach.

* In Gray v Adduci, 73 NY2d 741, the Court of Appeals said that it was well established that "hearsay evidence can be the basis of an administrative determination."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_03267.htm


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