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What is substantial evidence?May 9, 2018

Matter of Marine Holdings, LLC v New York City Commn. on Human Rights, 2018 NY Slip Op 03303 (2018)

Every Article 75 compulsory arbitration case involving legal insufficiency or credibility of evidence claims is subjected to a substantial evidence review.  The term is a misnomer as we learned this week from the Court of Appeals:

“”Quite often there is substantial evidence on both sides” of an issue disputed before an administrative agency (Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d 494, 500 [2011]), and the substantial evidence test “demands only that a given inference is reasonable and plausible, not necessarily the most probable” (id. at 499 [internal quotation marks and citation omitted]). Applying this standard, “[c]ourts may not weigh the evidence or reject [a] determination where the evidence is conflicting and room for choice exists” (Matter of State Div. of Human Rights (Granelle), 70 NY2d 100, 106 [1987]). Instead, “when a rational basis for the conclusion adopted by the [agency] is found, the judicial function is exhausted. The question, thus, is not whether [the reviewing court] find[s] the proof . . . convincing, but whether the [agency] could do so” (id. [citations omitted]).”

The Court’s abdication of the ability to review administrative awards that are inherently questionable but not “off the charts wrong” is improper.  We have three levels here.  The first is that the award has support.  The second is the award smells bad.  The third is the award is “off the charts wrong”.

We all agree the Courts have no business addressing level 1 and must address level 3.  It is level 2 that forms the basis of so many appeals.  I only suggest that a deeper look at level 2 cases is warranted.  The dissent (I did not publish it) did just that.

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