PLUTA v. NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES

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

Matter of Wayne PLUTA, Petitioner, v. NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES, John A. Johnson, Commissioner, New York State Central Register of Child Abuse and Maltreatment, Valerie Johnson, Administrative Law Judge, and David Molik, Commissioner Designee, Bureau of Special Hearings, Respondents.

Decided: April 29, 2005

PRESENT GREEN, J.P., HURLBUTT, MARTOCHE, LAWTON, AND HAYES, JJ. Lacy Katzen LLP, Rochester (William H. Bristol of Counsel), for Petitioner. Eliot Spitzer, Attorney General, Albany (Dorothy E. Hill of Counsel), for Respondents.

 Petitioner commenced this CPLR article 78 proceeding seeking to annul a determination of respondent New York State Office of Children and Family Services, John A. Johnson, Commissioner, denying petitioner's request to amend an indicated report of maltreatment to an unfounded report (see Social Services Law § 422[8][a][v], [c][ii] ).   We conclude that the determination is rational and supported by substantial evidence (see Matter of Sandra V. v. Monroe County Dept. of Social Servs., 9 A.D.3d 891, 779 N.Y.S.2d 375;  Matter of Gerald G. v. State of New York Dept. of Social Servs., 248 A.D.2d 918, 919, 670 N.Y.S.2d 267).   Contrary to the contention of petitioner, respondents did not violate his right to due process by declining to consider his motion to dismiss at the outset of the fair hearing.   There is no procedural mechanism for such a motion under Social Services Law § 422 (see generally Matter of Lee TT. v. Dowling, 87 N.Y.2d 699, 704-705, 642 N.Y.S.2d 181, 664 N.E.2d 1243).   Moreover, as the Administrative Law Judge pointed out, it did not make sense for her to entertain a motion from petitioner that would obviate the need for a hearing that he had requested.   Contrary to the further contention of petitioner, it was not “improper for the fact-finding determination to be made by a person who did not preside at the [ ] hearing” (Matter of David C. v. New York State Dept. of Social Servs., 203 A.D.2d 964, 965, 611 N.Y.S.2d 78;  see Matter of Simpson v. Wolansky, 38 N.Y.2d 391, 394, 380 N.Y.S.2d 630, 343 N.E.2d 274) and petitioner was not deprived of due process thereby (see Matter of Gupta v. New York State Dept. of Social Servs., 208 A.D.2d 629, 617 N.Y.S.2d 367).   We disagree with petitioner's contention that the determination is arbitrary and capricious because it is based on hearsay.   Hearsay evidence of maltreatment is sufficiently reliable and probative to constitute substantial evidence (see Sandra V., 9 A.D.3d at 892, 779 N.Y.S.2d 375) and may serve as the basis of an administrative determination without violating due process or confrontation rights (see Matter of Scaccia v. Martinez, 9 A.D.3d 882, 883-884, 779 N.Y.S.2d 680).   That is true even of the double hearsay statement challenged by petitioner (see Matter of Ribya BB. v. Wing, 243 A.D.2d 1013, 1014, 663 N.Y.S.2d 417).   We have considered petitioner's remaining contentions and conclude that they are lacking in merit.

It is hereby ORDERED that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed.

MEMORANDUM: