SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

333 

TP 16-01392 

PRESENT: WHALEN, P.J., SMITH, CARNI, LINDLEY, AND NEMOYER, JJ. 

 

IN THE MATTER OF TARA DIXON FUNDERGURG, 

PETITIONER, 

V MEMORANDUM AND ORDER

NEW YORK STATE OFFICE OF CHILDREN AND FAMILY 

SERVICES, RESPONDENT. 

CREIGHTON, JOHNSON & GIROUX, BUFFALO (CANDACE L. MORRISON OF COUNSEL), 

FOR PETITIONER. 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PATRICK A. WOODS 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 [Deborah A.

Chimes, J.], entered August 9, 2016) to review a determination of

respondent. The determination revoked petitioner’s registration to

operate a family daycare center. 

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 revoking her registration

to operate a family daycare center. We note at the outset that

petitioner challenges only the penalty and does not raise a

substantial evidence issue, and thus Supreme Court erred in

transferring the proceeding to this Court (see Matter of Lynch v New

York State Dept. of Motor Vehs. Appeals Bd., 125 AD3d 1326, 1326). 

Nevertheless, in the interest of judicial economy, we address the

merits of petitioner’s challenge (see id.).

An administrative penalty will be upheld “unless it is ‘so

disproportionate to the offense as to be shocking to one’s sense of

fairness,’ thus constituting an abuse of discretion as a matter of

law” (Matter of Kelly v Safir, 96 NY2d 32, 38, rearg denied 96 NY2d

854). That is not the case here. The evidence at the fair hearing

established, inter alia, that petitioner transported herself and 12

children from a church where they were having lunch back to her

daycare in a seven-passenger minivan. In addition, of the four

children under the age of four in petitioner’s care, only one was

secured in a child safety seat, in violation of Vehicle and Traffic
-2- 333 

TP 16-01392 

Law § 1229-c (1) (a) and 18 NYCRR 416.6 (f). 

Contrary to petitioner’s contention, there were no mitigating

circumstances that would render the penalty shocking to one’s sense of

fairness. “[P]etitioner was not confronted by unanticipated

circumstances, not of her own making, to which she responded

appropriately” (Matter of Briggs v New York State Off. of Children &

Family Servs., 142 AD3d 1284, 1285; cf. Matter of Lewis v New York

State Off. of Children & Family Servs., 114 AD3d 1065, 1067-1068;

Matter of Grady v New York State Off. of Children & Family Servs., 39

AD3d 1157, 1158-1159). Rather, as petitioner admitted at the hearing,

while there were safe alternatives available, she chose a course of

action that presented a “huge safety hazard” for the children in her

care. Under the circumstances, revocation of petitioner’s

registration is not disproportionate to the offense (see Briggs, 142

AD3d at 1285). 

Entered: March 24, 2017 Frances E. Cafarell

Clerk of the Court