| Matter of Benjamin v Carrion |
| 2010 NY Slip Op 09131 [79 AD3d 744] |
| December 7, 2010 |
| Appellate Division, Second Department |
| In the Matter of Vickie Benjamin, Petitioner, v Gladys Carrion etal., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Peter Karanjia and Laura R. Johnson ofcounsel), for respondents.
Proceeding pursuant to CPLR article 78 to review a determination of David Molik, designee of theCommissioner of the New York State Office of Children and Family Services, dated March 2, 2007,which, after a hearing, denied the petitioner's application to amend and expunge a report maintained bythe New 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, without costs or disbursements.
At an administrative expungement hearing to determine whether a report of child abuse ormaltreatment is substantiated, the allegations in the report must be established by a fair preponderanceof the evidence (see Matter of Lee TT. v Dowling, 87 NY2d 699 [1996]; Matter of Blythe v Carrion, 63 AD3d1059 [2009]). "It is the function of the administrative agency, not the reviewing court, to weigh theevidence or assess the credibility of the witnesses" (Matter of Bullock v State of N.Y. Dept. ofSocial Servs., 248 AD2d 380, 382 [1998]).
Judicial review of a determination that such a report has been substantiated is limited to whether thedetermination is supported by substantial evidence in the record (see Matter of Blythe vCarrion, 63 AD3d at 1060; Matter ofValentine v New York State Cent. Register of Child Abusers & Maltreatment, 37 AD3d 249,250 [2007]). "Substantial evidence has been defined as 'such relevant proof as a reasonable mind mayaccept as adequate to support a conclusion or ultimate fact' " (Matter of Joseph v Johnson, 27 AD3d 563, 563 [2006], quoting300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). "It hasalso been held that substantial evidence is . . . more than mere speculation or conjecture,but less than a preponderance of the evidence" (Matter of Joseph v Johnson, 27 AD3d at 563,citing 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d at 180).
Here, there is substantial evidence in the record to support the determination of David Molik,designee of the Commissioner of the New York State Office of Children and Family Services, that[*2]the subject child's physical, mental, or emotional condition has beenimpaired, or is in imminent danger of becoming impaired, as a result of the petitioner's failure to exercisea minimum degree of care in providing proper supervision or guardianship (see Matter of Joseph v Johnson, 27 AD3d563 [2006]; Matter of Fernald v Johnson, 305 AD2d 503 [2003]; see also Matter ofKaryn D., 282 AD2d 746, 746-747 [2001]; Matter of Jesse DD., 223 AD2d 929,931-932 [1996]; Matter of Moises D., 128 AD2d 775, 778 [1987]; Social Services Law§ 412 [2] [a] [i]; Family Ct Act § 1012 [f] [i] [B]). Accordingly, this CPLR article 78proceeding must be dismissed on the merits. Skelos, J.P., Eng, Hall and Lott, JJ., concur.