Hearsay is admissible in administrative proceedings and, if sufficiently relevant and probative, may constitute substantial evidence

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Hearsay is admissible in administrative proceedings and, if sufficiently relevant and probative, may constitute substantialevidence
Szczepaniak v City of Rochester, 2012 NY Slip Op 08896, AppellateDivision, Fourth Department
The City of Rochester determined that one of its employees wasguilty of the disciplinary charges filed against him and terminating him fromhis employment. Supreme court dismissed the individual's Article 78 petition challenging hisdismissal and the Appellate Division affirmed the lower court’s ruling.
One of the arguments advanced by the individual in his petition was that “thedetermination is not supported by substantial evidence because the evidencepresented was hearsay.“*
The Appellate Division, noting that the hearsay evidence admitted at the administrative hearing consisted of attendance records about individual’s outside employment,ruled that the evidence was relevant and probative on the charges that the individual had worked atthat outside employment while he was on sick leave, or other leave from hisemployment with the City, and receiving certain benefits.
The court explained that hearsay is admissiblein administrative proceedings "and if sufficiently relevant and probativemay constitute substantial evidence." Accordingly, said the Appellate Division, thereis no merit to the individual's contention that the determination is notsupported by substantial evidence because the evidence presented was hearsay.
Citing Pell v Board of Educ. of Union Free School Dist. No.1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, theAppellate Division said that it found that the appointing authoritiesdetermination as to the employees guilt was “supported by substantial evidence,i.e., "such relevant proof as a reasonable mind may accept as adequate tosupport a conclusion or ultimate fact."
As to the penalty imposed, dismissal, the court said that itconcluded that “the penalty of termination from petitioner's employment is not ‘sodisproportionate to the offense[s] as to be shocking to one's sense of fairness,’and thus does not constitute an abuse of discretion as a matter of law,” citingKelly v Safir, 96 NY2d 32.
* Essentially hearsay evidence is testimony given by an individual who testifiesabout what he or she has heard from others rather than testifies about that whichhe or she personally heard, knows or observed concerning a conversation, an event or a situation.
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08896.htm