        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

823
TP 14-00205
PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY, AND VALENTINO, JJ.


IN THE MATTER OF JOY ARBOGAST, PETITIONER,

                    V                             MEMORANDUM AND ORDER

NEW YORK STATE OFFICE OF CHILDREN AND FAMILY
SERVICES, SPECIAL HEARING BUREAU, RESPONDENT.


MURPHY MEYERS LLP, ORCHARD PARK (MARGARET A. MURPHY OF COUNSEL), FOR
PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Erie County [Christopher J.
Burns, J.], entered January 29, 2014) to review a determination of
respondent. The determination denied petitioner’s application to
amend the indicated report of maltreatment to an unfounded report.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
to review a determination, made after a fair hearing, denying her
request to amend an indicated report of maltreatment with respect to
her four-year-old granddaughter to an unfounded report, and to seal it
(see Social Services Law § 422 [8] [a] [v]; [c] [ii]). “At an
administrative expungement hearing, a report of child . . .
maltreatment must be established by a fair preponderance of the
evidence” (Matter of Reynolds v New York State Off. of Children &
Family Servs., 101 AD3d 1738, 1738 [internal quotation marks
omitted]), and “[o]ur review . . . is limited to whether the
determination was supported by substantial evidence in the record on
the petitioner[’s] application for expungement” (Matter of Mangus v
Niagara County Dept. of Social Servs., 68 AD3d 1774, 1774, lv denied
15 NY3d 705 [internal quotation marks omitted]; see Matter of Hattie
G. v Monroe County Dept. of Social Servs., Children’s Servs. Unit, 48
AD3d 1292, 1293). Here, we conclude that, contrary to petitioner’s
contention, the hearsay evidence of maltreatment—including but not
limited to testimony that the subject child told a nurse and a child
protective services caseworker that petitioner caused her injury,
i.e., a ripped right earlobe—constituted substantial evidence
supporting the determination (see Matter of Jeannette LL. v Johnson, 2
                                 -2-                           823
                                                         TP 14-00205

AD3d 1261, 1263-1264; see generally Matter of Draman v New York State
Off. of Children & Family Servs., 78 AD3d 1603, 1603-1604). Although
the testimony of petitioner and her sister conflicted with the
evidence presented by respondent, “it is not within this Court’s
discretion to weigh conflicting testimony or substitute its own
judgment for that of the administrative finder of fact” (Matter of
Ribya BB. v Wing, 243 AD2d 1013, 1014; see Matter of Crandall v New
York State Off. of Children & Family Servs., Special Hearings Bur.,
104 AD3d 1199, 1199). We therefore confirm the determination.




Entered:   July 11, 2014                        Frances E. Cafarell
                                                Clerk of the Court
