Opinion
2014-04-22
In re Amal MALAK, Petitioner, v. The STATE of New York, et al., Respondents.
Bailey & Sherman, P.C., Douglaston (Anthony V. Gentile of counsel), for petitioner. Eric T. Schneiderman, Attorney General, New York (David Lawrence III of counsel), for respondents.
Bailey & Sherman, P.C., Douglaston (Anthony V. Gentile of counsel), for petitioner. Eric T. Schneiderman, Attorney General, New York (David Lawrence III of counsel), for respondents.
TOM, J.P., FRIEDMAN, MANZANET–DANIELS, GISCHE, CLARK, JJ.
Determination of respondent New York State Office of Children and Family Services, dated March 20, 2012, which revoked petitioner's group family day care home license, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Alexander W. Hunter, J.], entered December 11, 2012), dismissed, without costs.
The determination to revoke petitioner's group family day care license is supported by substantial evidence that petitioner committed the six violations with which she was charged and that such violations placed the health, safety and welfare of the children in imminent danger ( see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180–181, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978];Clarke v. New York State Off. of Children & Family Servs., 91 A.D.3d 489, 935 N.Y.S.2d 884 [1st Dept.2012] ). Petitioner admittedly exceeded the maximum licensed capacity by three pre-school aged children (18 NYCRR 416.15[a][4] ) and stalled the inspection while attempting to conceal the additional children by bringing them to the home of a neighbor, who was not an approved caregiver, while leaving the remaining children with one assistant (18 NYCRR 416.15[a][10], 416.8 [a] ). In addition, petitioner initially denied the existence of the additional children, and only admitted that she had taken them next door and retrieved them after the inspector confronted her and demanded that the children be returned. There is also evidence establishing that petitioner aggravated the circumstances by attempting to bribe the inspector. These actions support respondent's finding that petitioner is not capable of providing safe and suitable care (18 NYCRR 416.13[a][3] ), does not possess good character and habits (18 NYCRR 416.15[a][6] ), and failed to comply with the regulations (18 NYCRR 416.15[a][1] ).
There exists no basis to disturb the Administrative Law Judge's credibility determinations ( see Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443–444, 522 N.Y.S.2d 478, 517 N.E.2d 193 [1987] ). The penalty of license revocation imposed by the ALJ does not shock the conscience ( see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ).
The existence of intermittent gaps in the record created by inaudible portions of the hearing transcript did not deprive petitioner of her right to meaningful review of the record ( see Matter of Rodriguez v. Coughlin, 167 A.D.2d 671, 563 N.Y.S.2d 248 [3d Dept.1990]; cf. Maude V. v. New York State Off. of Children & Family Servs., 75 A.D.3d 691, 692, 905 N.Y.S.2d 676 [3d Dept.2010] ).
We have considered petitioner's remaining arguments and find them unavailing.