SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

248 

TP 15-00796 

PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ. 

 

IN THE MATTER OF KHALID EMERSON, PETITIONER, 

V MEMORANDUM AND ORDER

NEW YORK STATE OFFICE OF CHILDREN AND FAMILY 

SERVICES, RESPONDENT. 

 

DIANE CIURCZAK, BUFFALO, FOR PETITIONER. 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JOSEPH M. SPADOLA OF

COUNSEL), FOR RESPONDENT. 

 

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, Erie County [John A.

Michalek, J.], entered May 8, 2015) to review a determination of

respondent. The determination denied the request of petitioner that

an indicated report be amended to unfounded and sealed. 

It is hereby ORDERED that the determination is unanimously

confirmed without costs and the petition is dismissed. 

Memorandum: Petitioner commenced this CPLR article 78 proceeding

seeking to annul respondent’s determination, after a fair hearing,

denying his request to amend to unfounded an indicated report of

maltreatment. Respondent determined that a preponderance of the

evidence supported the conclusion that petitioner abused and

maltreated a child during an incident that took place in the course of

petitioner’s employment. 

“[O]ur review is limited to whether the determination to deny the

request to amend and seal the [indicated] report is supported by

substantial evidence in the record” (Matter of Dawn M. v New York

State Cent. Register of Child Abuse & Maltreatment, 138 AD3d 1492,

1493). Substantial evidence is “ ‘such relevant proof as a reasonable

mind may accept as adequate to support a conclusion or ultimate 

fact’ ” (Matter of Kordasiewicz v Erie County Dept. of Social Servs.,

119 AD3d 1425, 1426). Here, contrary to petitioner’s contention, we

conclude that the evidence of maltreatment, including testimony that

the subject child told a nurse and a child protective services

caseworker that petitioner punched him and struck him with a shoe,

testimony of a witness to that incident, and evidence that the child

sustained scratches and redness consistent with such an event,

constituted substantial evidence supporting the determination (see
-2- 248 

TP 15-00796 

generally Matter of Garzon v New York State Off. of Children and

Family Servs., 85 AD3d 1603, 1604; Matter of Kenneth VV. v Wing, 235

AD2d 1007, 1007-1008). Contrary to petitioner’s further contention,

the existence of contrary evidence does not require a different

result. Where, as here, “conflicting versions of events create

credibility issues, it is [respondent’s] responsibility to resolve

them, and that assessment will not be disturbed as long as it is

supported by substantial evidence” (Matter of Jeannette LL. v Johnson,

2 AD3d 1261, 1263). It “ ‘is not within this Court’s discretion to

weigh conflicting testimony or substitute its own judgment for that of

the administrative finder of fact’ ” (Matter of Pitts v New York State

Off. of Children & Family Servs., 128 AD3d 1394, 1395; see Matter of

Ribya BB. v Wing, 243 AD2d 1013, 1014).

Entered: March 24, 2017 Frances E. Cafarell

Clerk of the Court