SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
648
CA 13-02240
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.
IN THE MATTER OF ROBERT GUESNO,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
VILLAGE OF EAST ROCHESTER,
RESPONDENT-RESPONDENT.
TREVETT CRISTO SALZER & ANDOLINA P.C., ROCHESTER (ERIC M. DOLAN OF
COUNSEL), FOR PETITIONER-APPELLANT.
COUGHLIN & GERHART, LLP, BINGHAMTON (PAUL J. SWEENEY OF COUNSEL), FOR
RESPONDENT-RESPONDENT.
Appeal from a judgment (denominated order) of the Supreme Court,
Monroe County (Thomas A. Stander, J.), entered March 12, 2013 in a
CPLR article 78 proceeding. The judgment denied the petition.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Memorandum: Petitioner commenced this proceeding pursuant to
CPLR article 78 challenging the determination terminating his General
Municipal Law § 207-c benefits on the ground that his current
disability is not related to an on-the-job injury. Contrary to
petitioner’s contention, Supreme Court properly refused to transfer
the proceeding pursuant to CPLR 7804 (g) inasmuch as the petition does
not raise an issue of substantial evidence (see Matter of Guillory v
Fischer, 110 AD3d 1426, 1427, appeal dismissed 22 NY3d 1111; Matter of
Burns v Carballada, 101 AD3d 1610, 1611, appeal dismissed and lv
denied 22 NY3d 926). “Where, as here, a petition does not raise a
substantial evidence issue, a court’s inquiry is ‘limited to whether
[the determination] was arbitrary, capricious or affected by error of
law’ ” (Matter of Koch v Sheehan, 95 AD3d 82, 89, affd 21 NY3d 697).
The record supports the court’s conclusion that the determination was
neither arbitrary and capricious, i.e., “without sound basis in reason
and . . . without regard to the facts” (Matter of Pell v Board of
Educ. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale &
Mamaroneck, Westchester County, 34 NY2d 222, 231), nor affected by an
error of law (cf. Matter of White v County of Cortland, 97 NY2d 336,
339).
Entered: June 20, 2014 Frances E. Cafarell
Clerk of the Court