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Theresa G. v. Johnson

26 A.D.3d 726 Court Fourth Department, Decision date 2006-02-03 English

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p. 726
Fourth Department,
February, 2006
(February 3, 2006)
In the Matter of Theresa G., Petitioner, v John A. Johnson, as Commissioner of New York State Office of Children and Family Services, et al., Respondents.
[807 NYS2d 892]

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Ontario County [Craig J. Doran, A.J.], dated August 12, 2005) to annul a determination of respondent Commissioner of New York State Office of Children and Family Services after a hearing.

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

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination of respondent Commissioner of New York State Office of Children and Family Services denying her request to amend an indicated report of maltreatment to an unfounded report and to seal the amended report (see Social Services Law § 422 [8] [a] [v]; [c] [ii]). We conclude that the determination is “rational and supported by substantial evidence” (Matter of Gerald G. v State of N.Y. Dept. of Social Servs., 248 AD2d 918 , 919 [1998]; see Matter of Sandra

p. 727
V. v Monroe County Dept. of Social Servs., 9 AD3d 891 [2004]). Contrary to the 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’ . . . and petitioner was not deprived of due process thereby” (Matter of Pluta v New York State Off. of Children & Family Servs., 17 AD3d 1126 , 1127 [2005], lv denied 5 NY3d 715 [2005], quoting Matter of David C. v New York State Dept. of Social Servs., 203 AD2d 964 , 965 [1994]; see Matter of Gupta v New York State Dept. of Social Servs., 208 AD2d 629 [1994]). Present—Pigott, Jr., P.J., Kehoe, Martoche, Smith and Pine, JJ.

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