March 15, 2019

Principles governing judicial review of administrative determinations pursuant to the substantial evidence standard


The Justice Center for the Protection of People with Special Needs [Justice] issued a report setting out an adverse "substantiated finding" involving Petitioner's interactions with an individual with special needs ["Service Recipient"]. Petitioner asked Justice to amend its report to "unsubstantiated" and that it be sealed. The original substantiated finding was sustained by the Justice Center's Administrative Appeals Unit and the matter was referred for a hearing before an Administrative Law Judge [ALJ].

The ALJ conducted two hearings and issued a recommended decision finding that Justice had established by a preponderance of the evidence that Petitioner was guilty of the alleged adverse conduct involving the Service Recipient. A final determination and order was issued adopting the ALJ's recommended decision. The decision denied Petitioner's request to amend and seal the report and directed that Petitioner be permanently placed on the agency's Vulnerable Person's Central Register staff exclusion list. Based on this determination, the New York State Office of Alcoholism and Substance Abuse Services [OASAS] revoked Petitioner's license.

Petitioner filed a CPLR Article 78 proceeding in Supreme Court contending the  determination was not supported by substantial evidence in the record because it was based upon controverted hearsay evidence. As a question of substantial evidence was raised by Petitioner, the proceeding was transferred to the Appellate Division.

Citing Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d 1044, the Appellate Division noted that the Court of Appeals had recently reviewed the principles governing judicial review of administrative determinations under the substantial evidence standard and stated that, as relevant in this action, the high court had emphasized that "the substantial evidence standard is a minimal standard[,] . . . demand[ing] only that a given inference is reasonable and plausible, not necessarily the most probable. . . . [Thus,] [w]here substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently."

As to considering hearsay evidence in an administrative hearing, the Appellate Division said that "hearsay is admissible as competent evidence in an administrative proceeding, and if sufficiently relevant and probative may constitute substantial evidence even if contradicted by live testimony on credibility grounds" [see Matter of Watson v New York State Justice Ctr. for the Protection of People with Special Needs, 152 AD3d 1025].*

The Appellate Division opined that the hearsay allegations made by the Service Recipient were sufficiently reliable because they were corroborated by independent evidence and "was consistent with video recordings from the facility's security cameras," noting that the ALJ had also considered evidence regarding the credibility of the Service Recipient and Petitioner.**

With respect to Service Recipient's credibility, Petitioner had argued that the Service Recipient [1] had fabricated her allegations to avoid immediate discharge from the facility based on her previous misconduct and [2] submitted an affidavit that she had executed, recanting her initial allegations. 

The decision reports that the ALJ had disregarded the affidavit because it had been provided to Petitioner's counsel following an interview during which counsel was accompanied by an investigator and the Service Recipient was alone and unrepresented and, further, because the Service Recipient subsequently reconfirmed the truth of her initial allegations in an interview with Justice investigators.  

Explaining that courts "will not weigh conflicting testimony or second guess the credibility determinations of the administrative fact finder" [ see Matter of Stephen FF. v Johnson, 23 AD3d 977], the Appellate Division held that Justice's determination was supported by substantial evidence.

* At the hearing before the ALJ, Justice relied solely upon hearsay testimony to establish the allegations concerning Petitioner.

** The decision indicates that the record also contained evidence relevant to Petitioner's credibility, namely, "his admission that he had violated the facility's code of conduct by maintaining ongoing relationships with former clients after their discharge."

The decision is posted on the Internet at:


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