

Matter of Gargano v New York State Off. of Children & Family Servs. (2015 NY Slip Op 08652)





Matter of Gargano v New York State Off. of Children & Family Servs.


2015 NY Slip Op 08652


Decided on November 24, 2015


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on November 24, 2015

Acosta, J.P., Saxe, Richter, Gische, Kapnick, JJ.


16234 100441/14

[*1] In re Michael Gargano, Petitioner,
vNew York State Office of Children and Family Services, et al., Respondents.


Law Offices of Sandra M. Radna, P.C., New York (Sandra M. Radna of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, New York (Philip V. Tisne of counsel), for State respondents.
Zachary W. Carter, Corporation Counsel, New York (Susan Paulson of counsel), for New York City Administration for Children's Services, respondent.

Determination of respondent State of New York Office of Children and Family Services (CFS), dated December 16, 2013, which, after a hearing, denied petitioner's request that respondent New York City Administration for Children's Services' (ACS) report against him for maltreatment of his children be sealed and amended from "indicated" to "unfounded," unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Carol E. Huff, J.], entered October 10, 2014), dismissed, without costs.
CFS' determination that ACS proved by a fair preponderance of the evidence that petitioner had maltreated his children is supported by substantial evidence, including NYPD domestic violence incident reports and the testimony and progress notes of an ACS caseworker (see Matter of Parker v Carrion, 90 AD3d 512, 512 [1st Dept 2011]). The evidence shows that petitioner committed acts of domestic violence against one child and against the children's mother in the children's presence, thereby causing imminent or actual harm to the children's physical and emotional health (see Nicholson v Scoppetta, 3 NY3d 357, 371-372 [2004]; see also Matter of Jeaniya W. [Jean W.], 96 AD3d 622, 623 [1st Dept 2012]). There is no basis to disturb the Administrative Law Judge's credibility determinations, as they are supported by the evidence (see Matter of Jeaniya, 96 AD3d at 623; see also Matter of Baker v Koehler, 166 AD2d 240, 240-241 [1st Dept 1990]).
We have considered petitioner's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: NOVEMBER 24, 2015
CLERK


