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

248
TP 15-00796
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.


IN THE MATTER OF KHALID EMERSON, PETITIONER,

                    V                             MEMORANDUM AND ORDER

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


DIANE CIURCZAK, BUFFALO, FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JOSEPH M. SPADOLA 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 [John A.
Michalek, J.], entered May 8, 2015) to review a determination of
respondent. The determination denied the request of petitioner that
an indicated report be amended to unfounded and sealed.

     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
seeking to annul respondent’s determination, after a fair hearing,
denying his request to amend to unfounded an indicated report of
maltreatment. Respondent determined that a preponderance of the
evidence supported the conclusion that petitioner abused and
maltreated a child during an incident that took place in the course of
petitioner’s employment.

     “[O]ur review is limited to whether the determination to deny the
request to amend and seal the [indicated] report is supported by
substantial evidence in the record” (Matter of Dawn M. v New York
State Cent. Register of Child Abuse & Maltreatment, 138 AD3d 1492,
1493). Substantial evidence is “ ‘such relevant proof as a reasonable
mind may accept as adequate to support a conclusion or ultimate
fact’ ” (Matter of Kordasiewicz v Erie County Dept. of Social Servs.,
119 AD3d 1425, 1426). Here, contrary to petitioner’s contention, we
conclude that the evidence of maltreatment, including testimony that
the subject child told a nurse and a child protective services
caseworker that petitioner punched him and struck him with a shoe,
testimony of a witness to that incident, and evidence that the child
sustained scratches and redness consistent with such an event,
constituted substantial evidence supporting the determination (see
                                 -2-                          248
                                                        TP 15-00796

generally Matter of Garzon v New York State Off. of Children and
Family Servs., 85 AD3d 1603, 1604; Matter of Kenneth VV. v Wing, 235
AD2d 1007, 1007-1008). Contrary to petitioner’s further contention,
the existence of contrary evidence does not require a different
result. Where, as here, “conflicting versions of events create
credibility issues, it is [respondent’s] responsibility to resolve
them, and that assessment will not be disturbed as long as it is
supported by substantial evidence” (Matter of Jeannette LL. v Johnson,
2 AD3d 1261, 1263). 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 Pitts v New York State
Off. of Children & Family Servs., 128 AD3d 1394, 1395; see Matter of
Ribya BB. v Wing, 243 AD2d 1013, 1014).




Entered:   March 24, 2017                      Frances E. Cafarell
                                               Clerk of the Court
