Petition, pursuant to CPLR article 78, transferred to this court by order of the Supreme Court, New York County (Harold Baer, Jr., J.), entered on or about June 6, 1989, seeking to annul a determination of respondent New York City Civil Service Commission, dismissed, and the determination confirmed, without costs.
Respondent John Daly was charged by petitioner New York City Department of Environmental Protection with misconduct for striking a co-worker and threatening him with physical harm unless charges were dropped against two fellow employees arising out of an alleged incident of racial bias. Daly was further charged with making false statements regarding the incident. The matter was heard before an Administrative Law Judge of the New York City Office of Administrative Trials and Hearings (OATH) who sustained all charges.
The determination, which turned largely on the credibility of the testimony given by the complainant and by respondent Daly, was appealed to respondent Civil Service Commission pursuant to section 76 (1) of the Civil Service Law. The Commission reversed the determination reached at the OATH hearing. While acknowledging that it lacked the opportunity to observe the demeanor of the witnesses, the Commission concluded that inconsistencies in the testimony given by the complaining witness and by Daly should be resolved in Daly’s favor.
On this appeal, petitioner Department of Environmental Protection (DEP) contends that the Commission impermissibly substituted its own assessment of the credibility of the witnesses for that of the Administrative Law Judge, thereby violating its mandate to determine the administrative appeal on the basis of the record (Civil Service Law § 76 [2]). The overriding issue, however, is the scope of judicial review of a determination of the Civil Service Commission which, by statute, is "final and conclusive, and not subject to further review in any court” (Civil Service Law § 76 [3]).
As we held in Matter of Pauling v Smith (46 AD2d 759), this statutory prohibition does not bar judicial review of an action of the Commission which is alleged to be purely arbitrary. The criterion for review is whether, as a matter of law, the determination was arbitrary (CPLR 7803 [3]) and not whether it was supported by substantial evidence (CPLR 7803 [4]). While the matter was therefore improperly transferred to this court pursuant to CPLR 7804 (g) (see, e.g., Matter of Schechter v New York State Employees’ Retirement Sys., 62 AD2d 543, *836544, affd 46 NY2d 983), it may be decided without necessity of remand to Supreme Court (Matter of 125 Bar Corp. v State Liq. Auth., 24 NY2d 174; Matter of Pauling v Smith, supra, at 760). Upon this record, it cannot be said, as a matter of law, that the determination of the Commission was arbitrary in view of the contradicting testimony given by Daly and the complaining witness (Board of Commrs. v Nassau County Civ. Serv. Commn., 121 AD2d 494). Concur—Murphy, P. J., Ross and Rubin, JJ.