Engel v. Calgon Corp.

Harvey, J.

(concurring). We concur with the opinion of Presiding Justice Mahoney for the reasons stated. However, we would confirm for an additional reason. In our view, the doctrines of res judicata and collateral estoppel have undergone an extensive process of refinement, particularly during the last 25 years. Heretofore, however, no appellate court has addressed the special problem created by the "substantial evidence” standard of proof applicable to most administrative determinations. Administrative decisions do not require a preponderance of the evidence (Matter of Acosta v Wollett, 55 NY2d 761; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179-180). In many instances, courts find substantial evidence supporting both sides of an issue but do not disturb the administrative agency’s decision (see, Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736; Matter of Clute v Chu, 106 AD2d 841, 843). In our view, giving estoppel effect to such decisions effectively denies a litigant his day in court. When an administrative decision is made on less than a preponderance of proof, no agency should be denied its right of determination merely because another agency had previously made a determination on the same evidence.