IN RE: Michael CHORNEY (2018)

Determination, after a hearing, of respondent New York State Office of Children and Family Services, dated February 23, 2015, which sustained an indicated report of child maltreatment against petitioner Michael Chorney, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Alexander W. Hunter, J.], entered January 12, 2016) dismissed, without costs.

The determination is supported by substantial evidence

(see Matter of Parker v. Carrion, 90 A.D.3d 512, 935 N.Y.S.2d 14 [1st Dept. 2011];  Matter of Irving v. Carrion, 120 A.D.3d 500, 500, 991 N.Y.S.2d 96 [2d Dept. 2014] ).

Respondent met its burden of proving maltreatment by petitioner by a preponderance of the evidence.  The out-of-court statements of then 31/212-year-old child, T.W., that petitioner kicked him during a toilet-training session, were corroborated so as to ensure reliability and to allow admission into evidence (see Family Court Act § 1046[a][vi];  Matter of Tristan R., 63 A.D.3d 1075, 883 N.Y.S.2d 229 [2d Dept. 2009];  Matter of Department of Social Servs. v. Waleska M., 195 A.D.2d 507, 600 N.Y.S.2d 464 [2d Dept. 1993], lv denied 82 N.Y.2d 660, 605 N.Y.S.2d 6, 625 N.E.2d 591 [1993];  Matter of Nicole V., 71 N.Y.2d 112, 116, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ).  The level of corroboration required under the Family Court Act is not the same as that required under the Penal Law. “Family Court Act § 1046 broadly provides that the child's prior out of court statements may be corroborated by [a]ny other evidence tending to support reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision” (Tristan R., 63 A.D.3d at 1076, 883 N.Y.S.2d 229 [internal quotation marks omitted] ).  T.W. made repeated and consistent statements that petitioner kicked him in the penis.  These statements were corroborated by notations in the hospital records, made shortly after the incident, indicating that T.W. sustained mild penile swelling, significant swelling to head of the penis, ecchymosis to both thighs and left scrotum.  The records also stated that the examining physician reported that the injuries were consistent with an impact.

The ALJ also properly considered T.W.'s consistent, unrecanted description of the incident, as well as T.W.'s lack of a motive to fabricate, as contrasted by petitioner's inconsistent and waffling accounts of the incident.

Substantial evidence also supported the determination that petitioner's maltreatment of T.W. was relevant and reasonably related to petitioner's employment as a special education teacher (see Social Services Law § 422[8][c][ii] ).

For the first time in this proceeding, petitioner argues that the ALJ's decision was erroneous because petitioner was not a “person legally responsible” for T.W. under Social Services Law § 412 and, therefore, could not have maltreated T.W. under Social Services Law § 422.  Petitioner's argument is unpreserved, and we decline to review it (Matter of Peckham v. Calogero, 12 N.Y.3d 424, 430, 883 N.Y.S.2d 751, 911 N.E.2d 813 [2009] );  Matter of Khan v. New York State Dept. of Health, 96 N.Y.2d 879, 730 N.Y.S.2d 783, 756 N.E.2d 71 [2001] ).

Accordingly, we find that respondent's prosecution of petitioner was proper, as was the determination of maltreatment.