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

519
TP 14-01876
PRESENT: CENTRA, J.P., SCONIERS, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF TYRONE PITTS, PETITIONER,

                    V                               MEMORANDUM AND ORDER

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


K. FELICIA PITTS-DAVIS, SYRACUSE, FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JULIE M. SHERIDAN 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, Onondaga County [Hugh A.
Gilbert, J.], entered October 8, 2014) to review a determination of
respondent. The determination denied the request of petitioner to
amend to “unfounded” two indicated reports of maltreatment with
respect to his two stepsons, and to seal those amended reports.

     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 his
request to amend to “unfounded” two indicated reports of maltreatment
with respect to his two stepsons, and to seal those amended reports
(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 the hearsay evidence of
maltreatment constituted substantial evidence supporting the
determination (see Matter of Markman v Carrion, 120 AD3d 1580, 1581;
Matter of Arbogast v New York State Off. of Children & Family Servs.,
Special Hearing Bur., 119 AD3d 1454, 1454-1455). Although the
testimony of petitioner and his wife conflicted with the evidence
                                 -2-                           519
                                                         TP 14-01876

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;
see generally Matter of Berenhaus v Ward, 70 NY2d 436, 443).




Entered:   May 1, 2015                          Frances E. Cafarell
                                                Clerk of the Court
