Labor & Employment Law

Hearsay evidence in administrative hearings

By Harvey Randall, Esq.

Hearsay evidence in administrative hearings
Derbyshire v Safir, App. Div., First Dept., 288 A.D.2d 18, Motion for leave to appeal denied, 97 N.Y.2d 611

In this appeal, the Appellate Division held that Joseph Derbyshire received a fair hearing and that substantial evidence supported the administrative determination to dismiss him from his position.

Derbyshire had argued that certain hearsay evidence against him should not have been considered in making the administrative determination. The Appellate Division disagreed, ruling that "[h]ighly probative hearsay evidence was properly admitted" and thus could be considered in making the determination.

The court also commented that Derbyshire's admissions to his wife were not protected by the marital privilege (Section 4502[b], Civil Practice Law and Rules) because of the nature of the misconduct they involved and it found no basis upon which to apply a more restrictive rule in administrative proceedings than would apply in a criminal proceeding.

Under the circumstances, the court said that "imposing the penalty of dismissal does not shock the conscience of this Court," citing Brown v Safir, 258 AD2d 359, [leave to appeal denied, 93 NY2d 807].

Full post as published by New York Public Personnel Law on March 31, 2008 (boomark / email).