
    In the Matter of Michael Stuart, Petitioner, v City of New York et al., Respondents.
    [643 NYS2d 112]
   Substantial evidence supports respondent’s determination on the specified charge of having engaged in an altercation with a supervisor (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180-182). That the Hearing Officer, for purposes of determining a penalty, considered petitioner’s personnel records which disclosed two prior acts of insubordination, did not constitute an amendment of the charge to one of insubordination, or otherwise deprive petitioner of his right to notice and an opportunity to be heard. The penalty was not disproportionate to the offense, under all the circumstances, including petitioner’s unsatisfactory work record. Concur— Sullivan, J. P., Ellerin, Rubin, Kupferman and Nardelli, JJ.  