        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1
TP 15-01229
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


IN THE MATTER OF JEFFREY TAMSEN, PETITIONER,

                    V                             MEMORANDUM AND ORDER

VILLAGE OF KENMORE, RESPONDENT.


W. JAMES SCHWAN, BUFFALO, FOR PETITIONER.

BOND, SCHOENECK & KING, PLLC, BUFFALO (MARK A. MOLDENHAUER OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Erie County [James H.
Dillon, J.], entered April 17, 2015) to review a determination of
respondent. The determination terminated the employment of
petitioner.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination finding him guilty of misconduct
and terminating his employment as a firefighter. Contrary to
petitioner’s contention, we conclude that the determination is
supported by substantial evidence, i.e., “such relevant proof as a
reasonable mind may accept as adequate to support a conclusion or
ultimate fact” (300 Gramatan Ave. Assoc. v State Div. of Human Rights,
45 NY2d 176, 180; see CPLR 7803 [4]). We likewise reject petitioner’s
contention that the Hearing Officer erred in determining that he
misrepresented the facts of the 911 call underlying this proceeding.
Although petitioner presented evidence to the contrary, “[t]he Hearing
Officer was entitled to weigh the parties’ conflicting . . . evidence
and to assess the credibility of witnesses, and ‘[w]e may not weigh
the evidence or reject [the Hearing Officer’s] choice where the
evidence is conflicting and room for a choice exists’ ” (Matter of
Clouse v Allegany County, 46 AD3d 1381, 1382, quoting Matter of
CUNY-Hostos Community Coll. v State Human Rights Appeal Bd., 59 NY2d
69, 75; see Matter of Childs v City of Little Falls, 109 AD3d 1148,
1149). We further conclude that the penalty imposed is not “ ‘so
disproportionate to the offense[s] as to be shocking to one’s sense of
fairness,’ ” and thus it does not constitute an abuse of discretion
                                 -2-                             1
                                                         TP 15-01229

(Matter of Kelly v Safir, 96 NY2d 32, 38, rearg denied 96 NY2d 854).




Entered:   February 5, 2016                    Frances E. Cafarell
                                               Clerk of the Court
