| Matter of Watson v New York State Justice Ctr. for the Protection ofPeople with Special Needs |
| 2017 NY Slip Op 05780 [152 AD3d 1025] |
[*1]
| 1 In the Matter of Doris Watson, Petitioner, v New York StateJustice Center for the Protection of People with Special Needs et al.,Respondents. |
Daren J. Rylewicz, Civil Service Employees Association, Inc. (Eric E. Wilke of counsel), forpetitioner.
Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), forrespondents.
Rumsey, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of respondent JusticeCenter for the Protection of People with Special Needs denying petitioner's request to amend andseal a report of abuse.
Petitioner is employed in a supervisory capacity by the Office of People with DevelopmentalDisabilities. In August 2013, respondent Justice Center for the Protection of People with SpecialNeeds (hereinafter the Justice Center) received a report alleging that petitioner physically abuseda 28-year-old individual (hereinafter the service recipient) while working in a unit that housesindividuals diagnosed with both developmental disabilities and psychiatric disorders by holdingthe service recipient on the floor while she was kicked multiple times by Malina Roberts, anotherservice provider. Following receipt of this report, the Justice Center investigated the incident and,in January 2014, issued a substantiated finding of a category three incident of abuse. In February2014, petitioner requested that the Justice Center report be amended to unsubstantiated and that itbe sealed. After the original substantiated finding of abuse was sustained by the Justice Center'sAdministrative Appeals Unit, the case was referred for a hearing before an Administrative Law[*2]Judge (hereinafter ALJ). At the hearing, the Justice Centersubmitted only hearsay evidence. Petitioner and Roberts were the only witnesses with personalknowledge of the incident who testified, and both denied that Roberts kicked the servicerecipient. Following the hearing, the ALJ issued a determination recommending that petitioner'srequest to amend the report to unsubstantiated and to seal it be granted, finding that the hearsayevidence submitted by the Justice Center was insufficient to refute the direct testimony and provethe allegations of abuse by a preponderance of the evidence. A final determination and orderdated August 5, 2015 rejected the ALJ's determination and sustained the category threesubstantiated finding of abuse. Petitioner commenced this CPLR article 78 proceeding tochallenge the determination.[FN*]
Petitioner contends that the final determination sustaining the category three finding of abuseis not supported by substantial evidence in the record; specifically, that the hearsay evidencesubmitted in support thereof is insufficient to outweigh the sworn testimony of petitioner andRoberts. An administrative determination made after a hearing required by law at which evidenceis presented will be sustained if it is supported by substantial evidence in the record (seeCPLR 7803 [4]; Matter of SupremeEnergy, LLC v Martens, 145 AD3d 1147, 1148 [2016]; Matter of Protect the Adirondacks! Inc. vAdirondack Park Agency, 121 AD3d 63, 69-70 [2014], lv dismissed and denied24 NY3d 1065 [2014]). Substantial evidence means "such relevant proof as a reasonable mindmay accept as adequate to support a conclusion or ultimate fact" (Matter of Ridge Rd. Fire Dist. vSchiano, 16 NY3d 494, 499 [2011]). "Under this standard, it is the responsibility of theadministrative agency to weigh the evidence and choose from among competing inferencestherefrom and, so long as the inference drawn and the ultimate determination made are supportedby substantial evidence, it is not for the court to substitute its judgment for that of theadministrative agency" (Matter of Supreme Energy, LLC v Martens, 145 AD3d at 1148[internal quotation marks and citations omitted]), "even if a contrary result is viable" (Matter of Stephen C. v Johnson, 39AD3d 932, 933 [2007], lv denied 9 NY3d 804 [2007] [internal quotation marks andcitation omitted]).
Petitioner contends that hearsay evidence cannot prevail over credible sworn testimonyadduced at an administrative hearing. However, it is well established that "an administrativedetermination may be based entirely upon hearsay evidence provided such evidence issufficiently relevant and probative or sufficiently reliable and is not otherwise seriouslycontroverted" (Matter of Doctor v NewYork State Off. of Alcoholism & Substance Abuse Servs., 112 AD3d 1020, 1022[2013] [internal quotation marks and citations omitted]; see Matter of Anderson v Bane,199 AD2d 708, 710 [1993]). In addition, an administrative determination may be based entirelyon such hearsay evidence even where there is contrary sworn testimony (see Matter of King vNew York State Dept. of Health, 295 AD2d 743, 744 [2002]).
Here, there is substantial evidence in the record to support the Justice Center's finaldetermination that petitioner engaged in conduct constituting category three abuse. In interviewsconducted by an investigator, three eyewitnesses to the incident—two residents of the unitand Monica Sutton, a service provider—made consistent statements about the materialfacts of the incident, specifically, that petitioner restrained the service recipient on the floor whileshe was kicked by Roberts. Although the eyewitness statements received at the hearing werehearsay, [*3]there were sufficient indicia of their reliability. Theaccounts of the eyewitnesses, who were interviewed separately, are consistent with each other,and, as noted by the Justice Center, were "unwavering as to the core allegations." Further, thestatements from the residents were obtained in personal interviews conducted only three daysafter the incident, and, although Sutton's statement was obtained approximately four months afterthe incident, it is corroborated by the written report of abuse that she made on the date of theincident. Notably, petitioner and Roberts each testified that Sutton witnessed the incident and,although each denied that Roberts kicked the service recipient, both admitted that the servicerecipient fell to the floor, where she grabbed Roberts by the legs, Roberts moved her legs in aneffort to free herself, and petitioner touched or held the service recipient by the shoulder whenshe was on the floor; these admissions are consistent with the eyewitness reports. Accordingly,the hearsay evidence in the record was sufficiently reliable to provide substantial evidence tosupport the Justice Center's determination.
Peters, P.J., Garry and Rose, JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.
Footnote *:Roberts also commenced aCPLR article 78 proceeding to annul the determination by the Justice Center denying her requestto amend and seal the report of abuse against her (Matter of Roberts v New York State JusticeCtr. for the Protection of People with Special Needs, 152 AD3d &mdash, 2017 NY Slip Op05779 [2017] [decided herewith]).