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

Matter of Williamson v New York State Off. of Children & Family Servs. 2013 NY Slip Op 08258 Decided on December 11, 2013 Appellate Division, Second 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 December 11, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
PLUMMER E. LOTT
LEONARD B. AUSTIN
SYLVIA O. HINDS-RADIX, JJ.
2012-11026
(Index No. 9157/12)

[*1]In the Matter of Nigel Williamson, appellant,

v

New York State Office of Children and Family Services, et al., respondents.




Harold A. Steuerwald, LLC, Bellport, N.Y., for appellant.
Eric T. Schneiderman, Attorney General, New York, N.Y.
(Richard Dearing and Brian A. Sutherland of
counsel), for respondents New York
State Office of Children and Family
Services and Gladys Carrion, as
Commissioner of the New York State Office
of Children and Family Services.
Dennis M. Brown, County Attorney, Central Islip, N.Y. (James
G. Bernet of counsel), for respondents
Suffolk County Department of Social
Services and Gregory J. Blass, as
Commissioner of the Suffolk County
Department of Social Services.


DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent New York State Office of Children and Family Services, dated November 30, 2011, denying the petitioner's request to expunge sealed, unfounded reports maintained by the New York State Central Register of Child Abuse and Maltreatment, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Pitts, J.), dated August 24, 2012, which denied the petition and, in effect, dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

As the petitioner correctly contends, and the respondents concede, the Supreme Court erred in denying the petition based on a failure to exhaust administrative remedies, since the petitioner was not entitled to a hearing with regard to his request to have the subject unfounded reports expunged (see Social Services Law § 422[5][c]).

Nonetheless, we affirm the judgment denying the petition and, in effect, dismissing the proceeding, because the petitioner, although afforded a full opportunity to do so, failed to present clear and convincing written evidence to the respondent affirmatively refuting the allegations in the reports (see Social Services Law § 422[5][c]; see e.g. Matter of Anonymous v New York State Off. of Children and Family Servs., 53 AD3d 810, 812). Accordingly, the challenged determination was not arbitrary and capricious. [*2]
MASTRO, J.P., LOTT, AUSTIN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court