Opinion
11-09-2017
In the Matter Of Dean DeROBERTS, Petitioner, v. NEW YORK STATE OFFICE OF CHILDREN and FAMILY SERVICES, Respondent.
Finocchio, English & Dorn, Syracuse (Vincent J. Finocchio, Jr., of Counsel), for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of Counsel), for Respondent.
Finocchio, English & Dorn, Syracuse (Vincent J. Finocchio, Jr., of Counsel), for Petitioner.
Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM:Petitioner commenced this CPLR article 78 proceeding seeking to annul respondent's determination, made after a fair hearing, that denied his request to amend to unfounded an indicated report of maltreatment. The Administrative Law Judge (ALJ) who presided at the hearing recommended that the request be granted, but the designee of respondent's Commissioner (Designee) denied the request. Contrary to petitioner's contention, the Designee adequately set forth in his decision his reasons for reaching a decision different from that of the ALJ (see 9 NYCRR 4.131 [II] [F]; Matter of Concerned Citizens of Allegany County v. Zagata,
231 A.D.2d 851, 852, 647 N.Y.S.2d 614 [4th Dept.1996], lv. denied 89 N.Y.2d 814, 659 N.Y.S.2d 854, 681 N.E.2d 1301 [1997] ). It is well settled that a designee " ‘is not required to adhere to the ALJ's findings of fact or credibility, and [he or she] is free to reach [his or her] own determination, so long as it is supported by substantial evidence in the record as a whole’ " ( Matter of Cauthen v. New York State Justice Ctr. for the Protection of People with Special Needs, 151 A.D.3d 1438, 1439, 58 N.Y.S.3d 682 [3d Dept.2017] ; see Matter of Simpson v. Wolansky, 38 N.Y.2d 391, 394, 380 N.Y.S.2d 630, 343 N.E.2d 274 [1975] ). The Designee found that petitioner struck the subject child five times in the back of the head, causing the child to sustain a head injury with nausea, some double vision, and balance issues. Contrary to petitioner's contention, we conclude that substantial evidence supports the determination of maltreatment (see Matter of Emerson v. New York State Off. of Children & Family Servs., 148 A.D.3d 1627, 1627, 49 N.Y.S.3d 597 [4th Dept.2017] ; Matter of Castilloux v. New York State Off. of Children & Family Servs., 16 A.D.3d 1061, 1062, 791 N.Y.S.2d 755 [4th Dept.2005], lv. denied 5 N.Y.3d 702, 800 N.Y.S.2d 373, 833 N.E.2d 708 [2005] ), as well as the determination that such maltreatment was relevant and reasonably related to childcare employment (see Matter of Dawn M. v. New York State Cent. Register of Child Abuse & Maltreatment, 138 A.D.3d 1492, 1494, 30 N.Y.S.3d 471 [4th Dept.2016] ; Castilloux, 16 A.D.3d at 1062, 791 N.Y.S.2d 755 ).
It is hereby ORDERED that the determination is unanimously confirmed without costs and the amended petition is dismissed.