Stapleton v. Kelly

Judgment unanimously vacated, determination confirmed and petition dismissed. Memorandum: The only issue raised in this CPLR article 78 proceeding is whether the determination is supported by substantial evidence. The matter should have been transferred to this court (see, CPLR 7804 [g]), and we will consider it as if it had been properly transferred in the first instance (see, Matter of Melvin v Kelly, 126

*1012AD2d 956, Iv denied 69 NY2d 609; Matter of Curl v Kelly, 125 AD2d 948).

The determination was based on the written report and oral testimony of the charging officer, as well as petitioner’s admission. It was supported by substantial evidence and must be confirmed (see, People ex rel. Vega v Smith, 66 NY2d 130; Matter of Melvin v Kelly, supra). (Appeal from judgment of Supreme Court, Wyoming County, Dadd, J. — art 78.) Present —Dillon, P. J., Callahan, Green, Balio and Lawton, JJ.