Brief on Appeal

177 A.D.2d 488, 575 N.Y.S.2d 1019

Supreme Court, Appellate Division, Second Department, New York

In the Matter of Ernest JEREMIAS, et al., Petitioners,
Elliot G. SANDER, etc., Respondent.

November 4, 1991

Segal, Goodman & Goodman, Brooklyn (Jerald Segal, of counsel), for petitioners.
Dennis B. Hasher, Bronx
(Richard Hartzman of counsel), for respondent.

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Deputy Commissioner of the New York State Division of Housing and Community Renewal, dated April 4, 1989, which, after a hearing, inter alia, found that the petitioner landlords had harassed their tenants, and imposed civil penalties. ADJUDGED that the determination is confirmed and the proceeding is dismissed on the merits, with costs. Following an administrative hearing, the respondent Deputy Comissioner of the New York State Division of Housing and Community Renewal (hereinafter DHCR) adopted the findings of its hearing officer and determined that the petitioners willfully violated the Administrative Code of the City of New York § 26-516 and selected provisions of the Rent Stabilization Code (9 NYCRR 2522.5, 2524.1, 2525.1, 2525.2, 2525.4, 2525.5 and 2526.2), and imposed civil penalties. It is well settled that an impartial decision maker is an essential component of due process (see, Withrow v. Larkin, 421 U.S. 35, 46-47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712; Matter of Warder v. Board of Regents of Univ. of State of N.Y., 53 N.Y.2d 186, 197, 440 N.Y.S.2d 875, 423 N.E.2d 352; State Administrative Procedure Act § 303; see also, Matter of 1616 Second Ave. Rest. v. New York State Liq. Auth., 75 N.Y.2d 158, 551 N.Y.S.2d 461, 550 N.E.2d 910). Thus, “a determination based not on a dispassionate review of facts but on a body’s prejudgment or biased evaluation must be set aside (see, Matter of Rotwein [Goodman], 291 N.Y. 116, 123, 51 N.E.2d 669). But a mere allegation of bias will not suffice. There must be a factual demonstration to support the allegation and proof that the outcome flowed from it” (Matter of Warder v. Board of Regents of Univ. of State of N.Y., supra, 53 N.Y.2d at 197, 440 N.Y.S.2d 875, 423 N.E.2d 352; see also, Matter of Hughes v. Suffolk County Dept. of Civ. Serv., 74 N.Y.2d 833, 546 N.Y.S.2d 335, 545 N.E.2d 625). We can find no factual support for the petitioners’ allegation of bias. The petitioners’ contention that the Deputy Commissioner’s determination was not supported by substantial evidence is without merit. “Where there is a conflict in the testimony produced * * * where reasonable men might differ as to whether the testimony of one witness should be accepted or the testimony of another be rejected, where from the evidence either of two conflicting inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weight the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists” (Matter of Stork Rest. v. Boland, 282 N.Y. 256, 267, 26 N.E.2d 247; Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 522 N.Y.S.2d 478, 517 N.E.2d 193; see also, Matter of Hoover v. Waters, 119 A.D.2d 575, 576, 500 N.Y.S.2d 1005). We find no basis for disturbing the Deputy Commissioner’s determination.