Petitioner, who was acting as Assistant Chief Inspector of Housing in the Building Department (his civil service title was Senior Housing Inspector) brought this article 78 proceeding to review the determination of the Commissioner of Buildings suspending petitioner a total of 41 days without pay after a hearing upon charges of misconduct, incompetency and violation of the Rules and Regulations of the Department. That determination was arrived at after the hearing officer had taken cognizance of petitioner’s good record in the department and had concluded there was no evidence of corrupt activity on the part of petitioner.
In our opinion the record amply establishes that petitioner failed to make a timely report of the unauthorized removal of records of the department by Edward Heater, a Building Inspector. Although petitioner was definitely apprised by October 15, 1958 that Heater, petitioner’s subordinate, had removed these records without authorization, petitioner did not report the incident until December 8,1958, after petitioner had been questioned by the Grand Jury. In that report, made two months after the event, petitioner ascribed his failure to make more timely disclosure of the removal of the records to petitioner’s sympathetic feelings for Heater, who was ill and facing serious departmental charges. The hearing officer evidently accepted this misguided conception of leniency for Heater as the reason for the delay in reporting the matter, rather than assigning any corrupt motive to petitioner’s inaction. But, in any event, the failure to make a timely report under the circumstances was palpably misconduct warranting discipline.
The absence of any specific rule or regulation requiring the making of a report is immaterial. Rule 39 of the Rules and Regulations of the Department of Buildings made all employees of the department responsible for the safekeeping of books and papers in their care and prohibited the removal of such records without the consent of the Commissioner or Deputy Commissioner. Petitioner, as Heater’s superior, was as much responsible for the safekeeping of the missing records as was Heater. His failure promptly to report the unauthorized removal of these records was a breach of his supervisory duties.
*250The belated attempt by petitioner to rely on the testimony of Chief Inspector Noonan, that an oral report had been made by petitioner to Noonan when Noonan returned from his vacation, lacks substance. The hearing officer properly disregarded Noonan’s testimony in that regard. At no time up to, and including, the hearing did petitioner have any independent recollection of speaking to Noonan about the matter. Petitioner made no mention of any such oral report in his Grand Jury testimony. It is unnecessary to speculate on Noonan’s motives in claiming to have received an oral report from petitioner, which petitioner failed to recall was ever given. But on the record before the hearing officer there was a substantial basis for discrediting Noonan’s unilateral testimony.
The subsequent disciplining of Noonan—of which the dissenting opinion, in a footnote, would take judicial notice — is not part of the record which we are reviewing, and obviously was not before the hearing officer at the time the determination was made. Apart from our lack of knowledge of the circumstances in the Noonan disciplinary action, we fail to see what materiality that subsequent action can have on the question of whether there was substantial evidence to sustain the determination against petitioner Berardi.
Since there was substantial evidence to support a finding of misconduct by the petitioner, the determination should be confirmed.