IN RE: VINCENT “KK”

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

IN RE: VINCENT “KK”,1 Petitioner, v. STATE OF NEW YORK OFFICE OF CHILDREN AND FAMILY SERVICES, Respondent.

Decided: June 21, 2001

Before:  CARDONA, P.J., CREW III, SPAIN, MUGGLIN and LAHTINEN, JJ. Biscone & Neri (John T. Biscone of counsel), Ravena, for petitioner. Eliot Spitzer, Attorney-General (Patrick Barnett-Mulligan of counsel), Albany, for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which denied petitioner's request to have his name expunged from the State Central Register of Child Abuse and Maltreatment.

Following an indicated report to the State Central Register of Child Abuse and Maltreatment, petitioner, the father of the allegedly maltreated child, requested that the report be amended to unfounded.   That request was denied, as the result of which an administrative hearing was held pursuant to Social Services Law § 422(8)(b).   At the conclusion of that hearing, the Administrative Law Judge found, by a fair preponderance of evidence, that maltreatment had been established and concluded that the report should not be amended.   Petitioner then commenced this CPLR article 78 proceeding seeking review of that determination.

 Petitioner contends that respondent failed to prove by the required “fair preponderance of the evidence” (Matter of Lee TT. v. Dowling, 87 N.Y.2d 699, 712, 642 N.Y.S.2d 181, 664 N.E.2d 1243) that the corporal punishment he inflicted upon his daughter constituted an act of child maltreatment. Specifically, petitioner challenges the fact that such finding was based almost exclusively upon hearsay evidence.   Suffice it to say that hearsay evidence is clearly admissible at all administrative hearings, including expungement hearings (see, Matter of Bullock v. State of New York Dept. of Social Servs., 248 A.D.2d 380, 382, 669 N.Y.S.2d 618).   Of particular note here is that petitioner admitted to investigating Social Services caseworkers, and testified at the hearing as well, that he struck his daughter four times with a belt.   Other evidence at the hearing demonstrated that the blows resulted in bruising to the child's arms and legs.   Such conduct previously has been held to constitute excessive corporal punishment justifying denial of expungement of a maltreatment report (see, Matter of Golden v. Department of Social Servs. of Broome County, 155 A.D.2d 853, 854, 548 N.Y.S.2d 112;  see also, Matter of Johannah QQ. [Frederick QQ.], 266 A.D.2d 769, 770, 698 N.Y.S.2d 783).

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

CREW III, J.

CARDONA, P.J., SPAIN, MUGGLIN and LAHTINEN, JJ., concur.

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