| Matter of Blythe v Carrion |
| 2009 NY Slip Op 05334 [63 AD3d 1059] |
| June 23, 2009 |
| Appellate Division, Second Department |
| In the Matter of Molly Blythe, Petitioner, v GladysCarrion et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Michael S. Belohlavek and MarionR. Buchbinder of counsel), for respondents.
Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner ofthe New York State Office of Children and Family Services dated December 20, 2007, which,after a hearing, denied the petitioner's application to amend and seal a report maintained in theNew York State Central Register of Child Abuse and Maltreatment.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, with costs.
At an administrative expungement hearing, a report of child abuse or maltreatment must beestablished by a fair preponderance of the evidence (see Matter of Lee TT. v Dowling,87 NY2d 699, 703 [1996]; Matter of Valentine v New York State Cent. Register of ChildAbusers & Maltreatment, 37 AD3d 249 [2007]; Matter of Lynnann P. v Suffolk CountyDept. of Social Servs., 28 AD3d 484, 485 [2006]; Matter of Jeannette LL. v Johnson,2 AD3d 1261, 1262 [2003]). Judicial review of a determination that a report of child abuseor maltreatment has been substantiated is limited to whether the determination is supported bysubstantial evidence in the record (see Matter of Valentine v New York State Cent. Registerof Child Abusers & Maltreatment, 37 AD3d at 249-250; Matter of Lynnann P. v SuffolkCounty Dept. of Social Servs., 28 AD3d at 485; Matter of Jeannette LL. v Johnson,2 AD3d at 1263). Here, the Administrative Law Judge's finding that a fair preponderance ofthe evidence established that the petitioner maltreated the subject child by creating a "substantialrisk of physical injury . . . to such child by other than accidental means" (SocialServices Law § 412 [9] [b]) is supported by substantial evidence. Accordingly, thedetermination must be confirmed, the petition denied, and the proceeding dismissed on themerits.
The petitioner's remaining contentions are not properly before this Court or are withoutmerit. Mastro, J.P., Fisher, Eng and Hall, JJ., concur.