Rispoli v. Waterfront Comm'n of N.Y. Harbor

• Decision Date: 12 March 2013
• Citation: 961 N.Y.S.2d 105,2013 N.Y. Slip Op. 01496,104 A.D.3d 461
• Parties: In re Anthony RISPOLI, Petitioner–Appellant, v. The WATERFRONT COMMISSION OF NEW YORK HARBOR, Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 461
961 N.Y.S.2d 105
2013 N.Y. Slip Op. 01496

In re Anthony RISPOLI, Petitioner–Appellant,
v.
The WATERFRONT COMMISSION OF NEW YORK HARBOR, Respondent–Respondent.

Supreme Court, Appellate Division, First Department, New York.

March 12, 2013.

[961 N.Y.S.2d 106]

Robert Koppelman, New York, for appellant.

Phoebe S. Sorial, New York, for respondent.

SWEENY, J.P., MOSKOWITZ, ABDUS–SALAAM, ROMÁN, FEINMAN, JJ.

[104 A.D.3d 461]Judgment, Supreme Court, New York County (Saliann Scarpulla, J.), entered January 12, 2012, denying the petition to annul the determination of respondent Waterfront Commission of New York, which revoked petitioner's registration as a special craft longshoreman, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The admission of hearsay statements at the administrative hearing did not violate petitioner's due process rights to a fair hearing or cross-examination. It is well established that “[h]earsay evidence can be the basis of an administrative determination” ( Matter of Gray v. Adduci, 73 N.Y.2d 741, 742, 536 N.Y.S.2d 40, 532 N.E.2d 1268 [1988] ). In addition to presenting the hearsay testimony, respondent presented the testimony of co-conspirator Cangelosi, which corroborated the hearsay testimony, and provided significant detail about petitioner's involvement in the marijuana grow operation. Petitioner was able to cross-examine Cangelosi, as well as Agent DiPasquale, who was called to introduce the hearsay statements made by others which implicated petitioner.

Petitioner's inability to cross-examine his brother, one of the individuals who made the statements implicating petitioner, does not require a different result. The Administrative Law [104 A.D.3d 462]Judge issued a subpoena in accordance with respondent's rules to compel the brother's attendance in order to give petitioner the opportunity to cross-examine him. The fact that the subpoena may have been ignored was not the fault of respondent or the ALJ, and constitutes good cause for failing to produce petitioner's brother, who was incarcerated at the time.

Petitioner's reliance on People ex rel. McGee v. Walters, 62 N.Y.2d 317, 476 N.Y.S.2d 803, 465 N.E.2d 342 [1984], is misplaced. In McGee, the administrative decision to revoke the petitioner's parole was based solely upon the parole officer's report, and the officer was not produced at the hearing because he was no longer employed by the Division of Parole. No...