Liddell v. N.Y. State Office of Children & Family Servs.

Full title: In the Matter of Evette LIDDELL, petitioner, v. NEW YORK STATE OFFICE OF…

Court: Supreme Court, Appellate Division, Second Department, New York.

Date published: May 7, 2014

117 A.D.3d 742 (N.Y. App. Div. 2014)

117 A.D.3d 742

2014 N.Y. Slip Op. 3270

Opinion

2014-05-7

In the Matter of Evette LIDDELL, petitioner, v. NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES, respondent.

Evette Liddell, Brooklyn, N.Y., appellant pro se. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Andrew W. Amend of counsel), for respondent.

Evette Liddell, Brooklyn, N.Y., appellant pro se. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Andrew W. Amend of counsel), for respondent.

Proceeding pursuant to CPLR article 78 to review a determination of John Franklin Udochi, as designee of the Commissioner of the respondent, the New York State Office of Children and Family Services, dated October 24, 2012, which, after a hearing, affirmed a prior determination of the New York State Office of Children and Family Services dated August 7, 2012, to suspend and revoke the petitioner's license to operate a group family day care home.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

In reviewing a determination dated October 24, 2012, confirming a determination of the respondent New York State Office of Children and Family Services to suspend and revoke a license to operate a group family day care home issued to the petitioner, “this Court's jurisdiction to review the evidence adduced at the hearing is limited to determining whether the determination is, ‘on the entire record, supported by substantial evidence’ ” (Matter of Occhiogrosso v. New York State Off. of Children & Family Servs., 72 A.D.3d 1092, 1092, 898 N.Y.S.2d 874, quoting CPLR 7803[4]; see Matter of Bauer v. New York State Off. of Children & Family Servs., Bur. of Early Childhood Servs., 55 A.D.3d 421, 422, 866 N.Y.S.2d 626;Matter of Alexander v. New York State Off. of Children & Family Servs., 50 A.D.3d 895, 895, 854 N.Y.S.2d 665). “Substantial evidence consists of ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’ ” (Matter of Wagner v. Fiala, 113 A.D.3d 694, 695, 978 N.Y.S.2d 699, quoting 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183). “While substantial evidence consists of more than a mere scintilla of evidence or mere speculation or conjecture, it is less than a preponderance of the evidence” (Matter of Wagner v. Fiala, 113 A.D.3d at 695, 978 N.Y.S.2d 699 [internal quotation marks omitted]; see Matter of Stork Rest. v. Boland, 282 N.Y. 256, 273, 26 N.E.2d 247;Matter of Marshall v. Fischer, 103 A.D.3d 726, 958 N.Y.S.2d 800;Matter of Miserendino v. City of Mount Vernon, 96 A.D.3d 946, 947, 946 N.Y.S.2d 640).

Here, the determination that the petitioner violated certain regulations is supported by substantial evidence in the record. Further, the penalty imposed was not so disproportionate to the offenses as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law ( see Matter of Simpson v. New York State Off. of Children & Family Servs., 94 A.D.3d 1008, 1009, 942 N.Y.S.2d 374;Matter of Occhiogrosso v. New York State Off. of Children & Family Servs., 72 A.D.3d at 1092, 898 N.Y.S.2d 874; Matter of Singleton v. New York State Off. of Children & Family Servs., 70 A.D.3d 706, 707, 892 N.Y.S.2d 890;Matter of Alexander v. New York State Off. of Children & Family Servs., 50 A.D.3d at 895, 854 N.Y.S.2d 665;Matter of Tender Loving Care Day Care, Inc. v. New York State Off. of Children & Family Servs., 47 A.D.3d 940, 941, 850 N.Y.S.2d 583).

The petitioner's remaining contentions are without merit. BALKIN, J.P., DICKERSON, LEVENTHAL and ROMAN, JJ., concur.