Senande v. Carrion

• Court: New York Supreme Court
• Writing for the Court: WILLIAM F. MASTRO
• Citation: Senande v. Carrion, 83 A.D.3d 851, 920 N.Y.S.2d 418, 2011 N.Y. Slip Op. 3075 (N.Y. Sup. Ct. 2011)
• Decision Date: 12 April 2011
• Parties: In the Matter of Ana SENANDE, et al., petitioners, v. Gladys CARRION, etc., et al., respondents.

83 A.D.3d 851

920 N.Y.S.2d 418

In the Matter of Ana SENANDE, et al., petitioners,

v.Gladys CARRION, etc., et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

April 12, 2011.

Harold, Salant, Strassfield & Spielberg, White Plains, N.Y. (Jerold C. Rotbard of counsel), for petitioners.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Sudarsana Srinivasan of counsel), for respondents.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, RUTH C. BALKIN, and ROBERT J. MILLER, JJ.

Proceeding pursuant to CPLR article 78 to review a determination of the New York State Office of Children and Family Services dated December 4, 2008, which, after a hearing, denied the petitioners' application to amend and seal an indicated report maintained by the New York State Central Register of Child Abuse and Maltreatment.

ADJUDGED that the petition is granted, on the law, with costs, the determination is annulled, and the matter is remitted to the respondents to amend the indicated report to an unfounded report and to seal the amended report.

At an administrative hearing to determine whether a report of child abuse or maltreatment is substantiated, the allegations in the report must be established by a fair preponderance of the evidence ( see Matter of Lee TT. v. Dowling, 87 N.Y.2d 699, 642 N.Y.S.2d 181, 664 N.E.2d 1243;Matter of Washington v. New York State Off. of Children & Family Servs., 78 A.D.3d 1066, 910 N.Y.S.2d 916;Matter of Blythe v. Carrion, 63 A.D.3d 1059, 880 N.Y.S.2d 555). Judicial review of a determination that such a report has been substantiated is limited to whether the determination is supported by substantial evidence in the record ( see Matter of Washington v. New York State Off. of Children & Family Servs., 78 A.D.3d 1066, 910 N.Y.S.2d 916;Matter of Blythe v. Carrion, 63 A.D.3d at 1060, 880 N.Y.S.2d 555). “Substantial evidence has been defined as ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’ ” (Matter of Joseph v. Johnson, 27 A.D.3d 563, 563, 810 N.Y.S.2d 346, quoting 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183).

The determination that the petitioners maltreated their daughter was not supported by substantial evidence ( see Matter of Parker v. Carrion, 80 A.D.3d 458, 914 N.Y.S.2d 150;Matter of Natiello v. Carrion, 73 A.D.3d 1070, 1071, 905 N.Y.S.2d 605;Matter of Hattie G....