Opinion
03-24-2017
In the Matter of Khalid EMERSON, Petitioner, v. NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES, Respondent.
Diane Ciurczak, Buffalo, for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Joseph M. Spadola of Counsel), for Respondent.
Diane Ciurczak, Buffalo, for Petitioner.
Eric T. Schneiderman, Attorney General, Albany (Joseph M. Spadola of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding seeking to annul respondent's determination, after a fair hearing, denying his request to amend to unfounded an indicated report of maltreatment. Respondent determined that a preponderance of the evidence supported the conclusion that petitioner abused and maltreated a child during an incident that took place in the course of petitioner's employment.
"[O]ur review is limited to whether the determination to deny the request to amend and seal the [indicated] report is supported by substantial evidence in the record" (Matter of Dawn M. v. New York State Cent. Register of Child Abuse & Maltreatment, 138 A.D.3d 1492, 1493, 30 N.Y.S.3d 471 ). Substantial evidence is " ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’ " (Matter of Kordasiewicz v. Erie County Dept. of Social Servs., 119 A.D.3d 1425, 1426, 990 N.Y.S.2d 750 ). Here, contrary to petitioner's contention, we conclude that the evidence of maltreatment, including testimony that the subject child told a nurse and a child protective services caseworker that petitioner punched him and struck him with a shoe, testimony of a witness to that incident, and evidence that the child sustained scratches and redness consistent with such an event, constituted substantial evidence supporting the determination (see generally Matter of Garzon v. New York State Off. of Children and Family Servs., 85 A.D.3d 1603, 1604, 924 N.Y.S.2d 904 ; Matter of Kenneth VV. v. Wing, 235 A.D.2d 1007, 1007–1008, 652 N.Y.S.2d 894 ). Contrary to petitioner's further contention, the existence of contrary evidence does not require a different result. Where, as here, "conflicting versions of events create credibility issues, it is [respondent's] responsibility to resolve them, and that assessment will not be disturbed as long as it is supported by substantial evidence" (Matter of Jeannette LL. v. Johnson, 2 A.D.3d 1261, 1263, 770 N.Y.S.2d 209 ). It " ‘is not within this Court's discretion to weigh conflicting testimony or substitute its own judgment for that of the administrative finder of fact’ " (Matter of Pitts v. New York State Off. of Children & Family Servs., 128 A.D.3d 1394, 1395, 7 N.Y.S.3d 795 ; see Matter of Ribya BB. v. Wing, 243 A.D.2d 1013, 1014, 663 N.Y.S.2d 417 ).
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.