McKnight v. Gunn

— Proceeding pursuant to CPLR article 78 to review a determination of the respondent New York City Transit Authority dated June 16, 1986, which, after a hearing, found the petitioner guilty of misconduct and/or incompetence and imposed a penalty.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements.

Upon our review of the record, we conclude that the respondents’ determination that the petitioner violated the rules and regulations of the New York City Transit Authority was supported by substantial evidence (see, Matter of Pell v Board of Educ., 34 NY2d 222). Moreover, the penalty recommendation of the Hearing Officer, while entitled to great weight, was *515not conclusive and could be disregarded by the official upon whom has been imposed the power to remove an employee or mete out discipline, provided that his action is supported by substantial evidence (see, Matter of Simpson v Wolansky, 38 NY2d 391; Matter of St. John’s Queens Hosp. v Axelrod, 137 AD2d 605). In this instance, based on the danger created by the failure to abide by the applicable rules of procedure, the penalty imposed was not shocking (see, Matter of Pell v Board of Educ., supra). Bracken, J. P., Lawrence, Rubin and Hooper, JJ., concur.