Opinion
931 TP 14-00070
09-26-2014
In the Matter of Kevin MARKMAN, Petitioner, v. Gladys CARRION, Commissioner, New York State Office of Children and Family Services and Kelly A. Reed, Commissioner, Monroe County Department of Human Services, Respondents.
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Petitioner. Merideth H. Smith, County Attorney, Rochester (Peter A. Essley of Counsel), for Respondent Kelly A. Reed, Commissioner, Monroe County Department of Human Services. Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of Counsel), for Respondent Gladys Carrion, Commissioner, New York State Office of Children and Family Services.
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Petitioner.
Merideth H. Smith, County Attorney, Rochester (Peter A. Essley of Counsel), for Respondent Kelly A. Reed, Commissioner, Monroe County Department of Human Services.
Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of Counsel), for Respondent Gladys Carrion, Commissioner, New York State Office of Children and Family Services.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, and WHALEN, JJ.
Opinion
MEMORANDUM: Petitioner commenced this proceeding pursuant to CPLR article 78 seeking to annul the determination, made after a fair hearing, denying in part his request to amend an indicated report of maltreatment with respect to two of his children to an unfounded report, and to seal it (see Social Services Law § 422[8][a][v] ; [c][ii] ). We conclude that the determination is supported by substantial evidence and therefore decline to disturb it (see 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 ; Matter of Parker v. Carrion, 90 A.D.3d 512, 512, 935 N.Y.S.2d 14 ). Where, as here, hearsay evidence is “sufficiently relevant and probative,” it may constitute substantial evidence (People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997 ; see Matter of Bullock v. State of N.Y. Dept. of Social Servs., 248 A.D.2d 380, 382, 669 N.Y.S.2d 618 ). The Administrative Law Judge credited the children's accounts of the incidents over petitioner's denials thereof, and we perceive no basis to disturb those credibility determinations (see generally Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443, 522 N.Y.S.2d 478, 517 N.E.2d 193 ; Matter of Scaccia v. Martinez, 9 A.D.3d 882, 883, 779 N.Y.S.2d 680 ).
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.