Stewart v Carrion

Stewart v Carrion 2011 NY Slip Op 00003 Decided on January 4, 2011 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 January 4, 2011
Friedman, J.P., Sweeny, Catterson, Renwick, RomÁn, JJ.
3604 401269/09

[*1]Pamela Stewart, Petitioner,

v

Gladys Carrion, etc., et al., Respondents.




Legal Services NYC-Bronx, Bronx (Maxine A. Ketcher of
counsel), for petitioner.
Andrew M. Cuomo, Attorney General, New York (Richard O.
Jackson of counsel), for state respondents.
Michael A. Cardozo, Corporation Counsel, New York (Marta
Ross of counsel), for municipal respondent.

Determination of respondent Commissioner of the New York State Office of Children and Family Services, dated January 27, 2009, which, after a fair hearing pursuant to Social Services Law § 422(8)(b), denied petitioner's request to expunge a report of maltreatment maintained in the New York State Central Register of Child Abuse and Maltreatment, unanimously annulled, without costs, the petition in this proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Marylin G. Diamond, J.], entered October 26, 2009), granted, and the report expunged.

On a petitioner's application for expungement, this Court's review is limited to whether the determination was supported by substantial evidence in the record (see Matter of Hattie G. v Monroe County Dept. of Social Servs., Children's Servs. Unit, 48 AD3d 1292, 1293 [2008]). To establish maltreatment, it was necessary to demonstrate, by a fair preponderance of the evidence, that petitioner "did not exercise a minimum degree of care and that, as a result, the child's physical, mental or emotional condition was impaired or in imminent danger of being impaired" (Matter of James HH., 234 AD2d 783, 783-784 [1996], lv denied 89 NY2d 812 [1997]; see Matter of Hofbauer, 47 NY2d 648, 655 [1979]; Matter of Alexander D., 45 AD3d 264 [2007]).

Respondent's finding that petitioner maltreated a two-year-old foster child is unsupported by any evidence of record that petitioner failed to exercise a minimal degree of care or that any failure impaired or was in imminent danger of impairing the foster child's physical condition.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 4, 2011 [*2]

CLERK