February 2, 1996
Appeal from the Supreme Court, Erie County, Doyle, J.
Present — Pine, J.P., Lawton, Wesley, Davis and Boehm, JJ.
Determination unanimously annulled on the law with costs and matter remitted to respondent Commissioner, New York State Department of Social Services, for further proceedings in accordance with the following Memorandum: Petitioner challenges a determination of respondent Commissioner of the New York State Department of Social Services (DSS) that denied his request to expunge records from the State Central Register indicating that petitioner had maltreated his daughter (see, Social Services Law § 422). The determination must be annulled. The Administrative Law Judge upheld the denial of petitioner's request based upon "some credible evidence" of maltreatment, an impermissibly low standard of proof; due process requires DSS to prove maltreatment by a fair preponderance of the evidence (see, Matter of Janice A.M.P. v. Bane, 216 A.D.2d 937; Valmonte v. Bane, 18 F.3d 992, 1002-1005). Thus, we remit the matter for a further hearing, if deemed necessary, and a determination based upon the proper standard of proof.