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
-4- 521850 

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