While I agree that Special Term’s order should be reversed, I would reinstate the determination of the respondent police commissioner and dismiss the petition.
In my view, this court, as did Special Term, under the guise of determining the existence of “substantial evidence”, has impermissibly substituted its view as to the credibility of witnesses for that of the trial commissioner. While the majority appropriately observes that “[i]n an administrative hearing the credibility of witnesses is a matter for the hearing officer” and “ "that a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion’ ”, it nevertheless proceeds to do that which is interdicted by the cases cited in support of the propositions quoted.
To conclude on the basis of this record as does the majority that the trial commissioner fully credited the testimony of Robinson “to the exclusion of all the other credible testimony which disputed his version of the incident”, and that the finding that Robinson was a credible witness “is flawed in light of the contradictory testimony of both hostile and friendly witnesses” misreads the record and overstates the case. The only one who disputed the claim that Sierra drew his revolver was Sierra. Both Lebrón and Hojnacki, merely testified that they did not see Sierra’s gun drawn, which is quite understandable given the relative positions of the individuals during the encoun*186ter. Lebrón testified, that when she exited from the vehicle and walked to the rear of the car where Robinson, Sierra añd Hojnacki were, that Robinson was positioned between herself and Sierra who was outside the car at the time she heard Robinson assert that Sierra had his gun drawn and pointed at him. Hojnacki testified that he was positioned on the passenger’s side of the vehicle, approximately eight feet from Sierra and Robinson. He testified that he did not see Officer Sierra draw his revolver during the incident. Critical to an evaluation of Sergeant Hojnacki’s testimony is the following exchange:
“Q. Did you see Officer Sierra at all times?
“A. If I was looking at Officer Sierra, I could see some part of his body at all times, correct.
“Q. Did you see where his gun was?
“A. I don’t believe so.
“Q. Now, again, when you were interviewed by the C.C.R.B. [Civilian Complaint Review Board], when you were asked regarding Police Officer Sierra removing his weapon, isn’t it a fact that you were asked a question about the weapon being drawn that you said I could not see or do I know if the "Police Officer’s gun was drawn, I was on the other side of the car, is that correct?
“A. That is correct.”
Thus neither Lebrón nor Hojnacki contradict Robinson and their failure to “corroborate” Robinson’s testimony that Sierra had Ms revolver drawn is more reasonably explained by the conclusion that they could not see because of their respective positions than by the conclusion that Sierra did not in fact have his revolver drawn.
Other testimony of these witnesses, however, does tend to support Robinson’s version of the incident..
For example, both Lebrón and Hojnacki confirmed the fact that Sierra and Robinson were in a fairly heated argument and that Sierra was “Upset, up-tight” to the extent that Hojnacki intervened and ordered him to return to the radio motor patrol car to issue a summons to Robinson for the traffic violation. Additionally, Hojnacki corroborated Robinson’s version of the genesis of this incident, *187that there was a mix-up in traffic and that as the radió motor patrol car was going through the intersection of Clay Avenue and 175th Street “the other guy was coming the other way, and exactly what happened, I don’t know, but there was a little confusion in the traffic, or who was going to go through first.” He further testified that after Robinson blew his horn “he proceeded into the intersection where we were and there was a little mixup with traffic, then Mr. Robinson made a U-turn and pulled in front of a building, then officer Sierra backed our car up.” Bearing in mind that Sierra was a substitute driver for Hojnacki that evening, it is not surprising that he became upset as a result of this “traffic mixup” to the extent that he may very well have said to Robinson upon his approach to Robinson’s vehicle that “you made me look like a jerk”.
In the not too distant past our Court of Appeals has had occasion to again refer to the rule enunciated by then Chief Judge Lehman in Matter of Stork Rest. v Boland (282 NY 256, 267): “ ‘[wjhere there is conflict in the testimony produced * * * where reasonable men might differ as to whether the testimony of one witness should be accepted or the testimony of another witness be rejected, where from the evidence either of two conflicting inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists’ ”. (Matter of Collins v Codd, 38 NY2d 269, at pp 270-271; see, also, Matter of Pell v Board of Educ., 34 NY2d 222, 231,233; Matter of Avon Bar & Grill v O’Connell, 301 NY 150, 153.)
The trial commissioner heard the testimony of the various witnesses, including that of Lebrón and Hojnacki, in which they said they did not see Sierra with his gun drawn and the conflicting testimony of Robinson and Sierra as to whether Sierra did in fact have his gun drawn. The commissioner elected to find Robinson “a credible witness and accepted] his version of what had occurred.” He further found that while Robinson became upset when he received what he believed was a wrongfully issued summons, he did not fabricate the complaint against Sierra because of his *188anger. On the other hand the commissioner found that “the Respondent [Sierra] overreacted in a situation where professionalism and calmness should have prevailed, and the Respondent escalated a routine situation by his lack of control and poor judgment.” These findings are grounded in substantial evidence and should not be disturbed.
While one might argue that in other circumstances an isolated incident of this sort would not warrant dismissal of a 12-year veteran from the police force, the commissioner pointedly observed that Sierra’s prior disciplinary record was extensive and was considered as very serious. That prior record involved a four-month suspension without pay for “wrongfully and without just cause * * * cocking and pointing his revolver” and “wrongfully and without just cause utter[ing] disrespectful remarks to occupants of a Department Vehicle after said occupants had identified themselves as members of the service on official duty and had displayed vehicle identification plate.” Indeed, it appears that Sierra was “under the influence of an intoxicant” on that occasion and that he “put his cocked revolver into the chest of one person, with finger on hammer of said revolver, having been informed that said person was a member of the service.” This conduct hardly bespeaks of mere aggressiveness.
The hearing examiner aptly observed “this Department can ill afford to retain a member of the service who conducts himself in a manner which is dangerous to society. The Department must take all necessary steps to lawfully remove from police service a violent [sic] prone officer once that officer has been identified. In the event the Department fails to assume- this responsibility and a tragedy occurs the Department must bear the grave consequences of the officer’s act.”
Under these circumstances it can hardly be said that the dismissal of this officer from the police force is shocking or in anywise inappropriate.
Murphy, P. J., and Asch, J., concur with Sullivan, J,; Kupferman, J., concurs in an opinion and Alexander, J., dissents in an opinion.
Order and judgment (one paper), Supreme Court, New York County, entered on October 7, 1981, vacated, and *189under the provisions of CPLR 7804 (subd [g]) this court treats the proceeding as if it had been transferred to it in the first instance, and the petition is granted and the determination annulled, without costs and without disbursements.