Opinion
519 TP 14-01876
05-01-2015
In the Matter of Tyrone PITTS, Petitioner, v. NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES, Respondent.
K. Felicia Pitts–Davis, Syracuse, for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of Counsel), for Respondent.
K. Felicia Pitts–Davis, Syracuse, for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of Counsel), for Respondent.
PRESENT: CENTRA, J.P., SCONIERS, VALENTINO, AND WHALEN, JJ.
Opinion
MEMORANDUM: Petitioner commenced this CPLR article 78 proceeding to review a determination, made after a fair hearing, denying his request to amend to “unfounded” two indicated reports of maltreatment with respect to his two stepsons, and to seal those amended reports (see Social Services Law § 422[8][a][v] ; [c][ii] ). “At an administrative expungement hearing, a report of child ... maltreatment must be established by a fair preponderance of the evidence” (Matter of Reynolds v. New York State Off. of Children & Family Servs., 101 A.D.3d 1738, 1738, 955 N.Y.S.2d 909 [internal quotation marks omitted] ), and “[o]ur review ... is limited to whether the determination was supported by substantial evidence in the record on the petitioner['s] application for expungement” (Matter of Mangus v. Niagara County Dept. of Social Servs., 68 A.D.3d 1774, 1774, 893 N.Y.S.2d 410, lv. denied 15 N.Y.3d 705, 2010 WL 3430855 [internal quotation marks omitted]; see Matter of Hattie G. v. Monroe County Dept. of Social Servs., Children's Servs. Unit, 48 A.D.3d 1292, 1293, 851 N.Y.S.2d 324 ). Here, we conclude that the hearsay evidence of maltreatment constituted substantial evidence supporting the determination (see Matter of Markman v. Carrion, 120 A.D.3d 1580, 1581, 993 N.Y.S.2d 593 ; Matter of Arbogast v. New York State Off. of Children & Family Servs., Special Hearing Bur., 119 A.D.3d 1454, 1454–1455, 990 N.Y.S.2d 399 ). Although the testimony of petitioner and his wife conflicted with the evidence presented by respondent, “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 Ribya BB. v. Wing, 243 A.D.2d 1013, 1014, 663 N.Y.S.2d 417 ; see Matter of Crandall v. New York State Off. of Children & Family Servs., Special Hearings Bur., 104 A.D.3d 1199, 1199, 960 N.Y.S.2d 673 ; see generally Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443, 522 N.Y.S.2d 478, 517 N.E.2d 193 ).
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.