152 A.D.2d 568 (1989)

In the Matter of Reid Bielecki, Petitioner, v. Cesar A. Perales, as Commissioner of The New York State Department of Social Services, Respondent

Appellate Division of the Supreme Court of the State of New York, Second Department.

July 3, 1989

Ordered that the determination is confirmed, and the proceeding is dismissed on the merits, with costs.

Upon our review of the record we conclude that there is substantial evidence to support the finding that the petitioner was operating an "adult care facility". Several of the current residents of the petitioner's facility were shown to have been "unable or substantially unable to live independently" (Social Services Law § 2 [21]; Matter of Pell v Board of Educ., 34 N.Y.2d 222). The petitioner points out that two doctors testified at the hearing that the prognosis had changed for the residents and that all could live independently. However, the Administrative Law Judge's assessment that the doctors' testimony was incredible was within his province (see, Matter of Amber Rock Pharmacy v Axelrod, 111 A.D.2d 848). On this record we find no reason to disturb that assessment.

In addition, we cannot say that the penalty imposed is so disproportionate to the offense as to be shocking to one's sense of fairness (see, Matter of Pell v Board of Educ., supra).

We have reviewed the petitioner's remaining contentions and find them to be without merit.


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