                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 5, 2016                       521850
________________________________

In the Matter of ZETRA BRUSO,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

CLINTON COUNTY et al.,
                    Respondents.
________________________________


Calendar Date:   March 21, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                             __________


      Steven A. Crain and Daren J. Rylewicz, Civil Service
Employees Association, Albany (Aaron E. Kaplan of counsel), for
petitioner.

      Lemire, Johnson & Higgins, LLC, Malta (Bradley J. Stevens
of counsel), for respondents.

                             __________


Clark, J.

      Proceeding pursuant to CPLR article 78 (partially
transferred to this Court by order of the Supreme Court, entered
in Clinton County) to review a determination of respondent County
Administrator of the County of Clinton terminating petitioner's
employment.

      Petitioner was employed by respondent Clinton County as a
registered nurse at respondent Clinton County Nursing Home. In
December 2012, the administrator of the nursing home brought
charges against petitioner pursuant to Civil Service Law § 75.
At a hearing on those charges, petitioner attempted to admit into
evidence a "Medication and Treatment Misadventures Form"
(hereinafter the form), an internal quality assurance document
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used by the nursing home to identify and address errors in
medicating its residents, as well as a resident's narcotics
prescription that was attached to the form. As a result, in
April 2013, the administrator of the nursing home brought two
additional charges against petitioner, which included three
specifications of alleged misconduct and incompetence. As
relevant here, petitioner was alleged to have knowingly possessed
the form and the attached prescription without authorization from
the nursing home.

      Following a hearing on the April 2013 charges, a Hearing
Officer found that all three specifications were supported by
substantial evidence and recommended termination of petitioner's
employment. Respondent Michael E. Zurlo, the Clinton County
Administrator, accepted the Hearing Officer's findings and
recommendation and concluded that termination of petitioner's
employment was the appropriate penalty.1 Petitioner then
commenced this proceeding pursuant to CPLR article 78 seeking,
among other things, to annul Zurlo's determination. Supreme
Court dismissed two of the specifications as untimely under Civil
Service Law § 75 (4) and transferred the proceeding to this Court
(see CPLR 7804 [g]).

      We first address petitioner's argument that the
determination should be annulled because the Hearing Officer was
biased. "Because hearing officers are presumed to be free from
bias, an appearance of impropriety is insufficient to set aside


    1
        At the time of this determination, Zurlo had already
concluded that petitioner was guilty of several of the December
2012 charges and terminated her employment. We note that, in a
decision decided herewith (Matter of Bruso v County of Clinton,
___ AD3d ___), we concluded that, at the time of his
determination of the December 2012 charges, Zurlo was not
authorized to review the record and the Hearing Officer's
recommendation and render a determination on those charges.
However, the same concern is not present here, as Zurlo was
vested with the power to review the present record and render a
determination on the April 2013 charges at the time that he did
so.
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an administrative determination; [the] petitioner must provide
factual support for his [or her] claim of bias and prove that the
outcome flowed from that bias" (Matter of Compasso v Sheriff of
Sullivan County, 29 AD3d 1064, 1065 [2006]; accord Matter of
Zlotnick v City of Saratoga Springs, 122 AD3d 1210, 1212-1213
[2014]). Although the Hearing Officer presided over the hearing
on the December 2012 charges, petitioner failed to overcome the
presumption and establish that the Hearing Officer prejudged the
matter (see Matter of Compasso v Sheriff of Sullivan County, 29
AD3d at 1065). We are similarly unpersuaded by petitioner's
contention that the Hearing Officer improperly considered
evidence outside of the record.

      Additionally, we are satisfied that Zurlo's determination
was independent and fully informed. In evaluating whether an
administrative determination is informed, courts accord the
determination a presumption of regularity and will not disturb it
absent "a clear revelation that the administrative body made no
independent appraisal and reached no independent conclusion"
(Matter of Taub v Pirnie, 3 NY2d 188, 195 [1957] [internal
quotation marks and citation omitted]; see Matter of Monahan v
Delaware-Chenango-Madison-Otsego Bd. of Coop. Educ. Servs., 27
AD3d 995, 996 [2006]; Matter of Nehorayoff v Fernandez, 191 AD2d
833, 835 [1993]). The record reveals that the hearing transcript
and exhibits were made available to Zurlo and that he reviewed
the posthearing briefs submitted by the parties, as well as the
findings, conclusions and recommendation of the Hearing Officer.
Contrary to petitioner's assertion, Zurlo was not required to
read the entirety of the hearing transcript (see Matter of
Perryman v Village of Saranac Lake, 64 AD3d 830, 835-836 [2009];
Matter of McKinney v Bennett, 31 AD3d 860, 861 [2006]).

      As for petitioner's challenge to the sufficiency of the
evidence supporting Zurlo's determination that petitioner was
guilty of the remaining charge, our standard of review is whether
the determination is supported by substantial evidence (see
Matter of Longton v Village of Corinth, 57 AD3d 1273, 1274
[2008], lv denied 13 NY3d 709 [2009]; Matter of Agnew v North
Colonie Cent. School Dist., 14 AD3d 830, 831 [2005]). "[T]his
Court will not 'second guess the credibility determinations of
the administrative factfinder'" (Matter of McKinney v Bennett, 31
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AD3d at 861, quoting Matter of Stephen FF. v Johnson, 23 AD3d
977, 978 [2005]; see Matter of Perryman v Village of Saranac
Lake, 64 AD3d at 835).

      Here, it is undisputed that the form and the attached
prescription contained confidential information relating to one
of the nursing home's residents, including the resident's name,
address, provider and prescribed medication. The administrator
of the nursing home and a staff nurse testified that they were
unable to locate the original form and that they had not given
petitioner permission to remove the document from the nursing
home. Although petitioner's former attorney testified that the
administrator gave him a file of documents and that the form was
included in that file, the administrator affirmatively testified
that she reviewed the contents of the file before turning it over
to petitioner's attorney and that the form was not in it.
Additionally, petitioner's attorney admitted that page two of the
form was not included in the file and that petitioner provided
that page to him later. Further, the parties jointly admitted
into evidence portions of petitioner's testimony at the hearing
on the December 2012 charges in which she gave varying accounts
as to how she came into possession of the form. In one version,
petitioner testified that the form was not produced by the
nursing home in response to her document requests and that she
kept the form for herself. This evidence presented a credibility
issue for the Hearing Officer, one that she resolved in favor of
respondents. Accepting the credibility determinations of the
administrative factfinder, we conclude that substantial evidence
supports the determination that petitioner knowingly possessed
the form and the attached prescription without permission in
violation of the nursing home's policies. We do not find that
termination of petitioner's employment is so disproportionate to
the offense as to be shocking to one's sense of fairness (see
Matter of Conde v Kelly, 118 AD3d 534, 535-536 [2014]).

      To the extent that petitioner's arguments have not been
expressly addressed herein, we have examined them and found them
to be without merit.

     Garry, J.P., Egan Jr., Lynch and Devine, JJ., concur.
                              -5-                  521850

      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
