Williamson v. New York State Office of Children & Family Services , 977 N.Y.S.2d 280 ( 2013 )

In a proceeding pursuant to CELR article 78 to review a determination of the respondent New York State Office of Children and Family Services, dated November 30, 2011, denying the petitioner’s request to expunge sealed, unfounded reports maintained by the New York State Central Register of Child Abuse and Maltreatment, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Pitts, J.), dated August 24, 2012, which denied the petition and, in effect, dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

As the petitioner correctly contends, and the respondents concede, the Supreme Court erred in denying the petition based on a failure to exhaust administrative remedies, since the petitioner was not entitled to a hearing with regard to his request to have the subject unfounded reports expunged (see Social Services Law § 422 [5] [c]).

Nonetheless, we affirm the judgment denying the petition and, in effect, dismissing the proceeding, because the petitioner, although afforded a full opportunity to do so, failed to present clear and convincing written evidence to the respondent affirmatively refuting the allegations in the reports (see Social Services Law § 422 [5] [c]; see e.g. Matter of Anonymous v New York State Off. of Children & Family Servs., 53 AD3d 810, 812 [2008]). Accordingly, the challenged determination was not arbitrary and capricious. Mastro, J.E, Lott, Austin and Hinds-Radix, JJ., concur.