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Substantial Evidence Supported Finding that Allowing a Child to Wander Away Near a Four-Lane Highway Constituted Maltreatment

The Third Department determined the Commissioner of Children and Family Services properly denied a petition to have a report maintained by the Central Register of Child Abuse and Maltreatment amended to be unfounded and expunged.  Petitioner called law enforcement because her grandchild had wandered away from her front yard and was found unharmed about 200 yards away.  There was no fence and the home faced a four-lane highway:

Substantial evidence supports the finding of maltreatment. In order to establish maltreatment, the agency was required “to demonstrate by a fair preponderance of the evidence that ‘the child’s physical, mental or emotional condition ha[d] been impaired or [was] in imminent danger of becoming impaired as a result of the [caregiver’s] failure to exercise a minimum degree of care'” in providing the child with appropriate supervision … . Upon review of such an administrative determination, “this Court’s inquiry is limited to whether the decision is rational and supported by substantial evidence” … . A determination is supported by substantial evidence “when reasonable minds could adequately accept the conclusion or ultimate fact based on the relevant proof” … .

Although petitioner’s home is at the end of a dead-end street, testimony by respondent Michelle Kelley, a caseworker for the Saratoga County Department of Social Services, and photographs introduced into evidence established that the home also faces a four-lane divided highway with a speed limit ranging from 45 to 55 miles per hour. Notably, the same evidence showed that there is no fence, or any similar physical barrier, directly between petitioner’s front yard and this highway. Matter of Cheryl Z v Carrion, 2014 NY Slip Op 05226, 3rd Dept 7-10-14

 

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THE TRIAL EVIDENCE DEMONSTRATED THE STATE HAD CONSTRUCTIVE NOTICE OF THE POTHOLE WHERE PLAINTIFF FRACTURED HER ANKLE AND FAILED TO REPAIR IT; NONJURY VERDICT REVERSED (THIRD DEPT).
THE DEATH OF A PARTY TO THIS FORECLOSURE ACTION AFFECTED THE MERITS OF THE CASE; SUPREME COURT DID NOT HAVE JURISDICTION TO DETERMINE DEFENDANT’S MOTION AND THE RELATED ORDER IS A NULLITY; THE APPEAL THEREFORE MUST BE DISMISSED (THIRD DEPT).
DURATION OF ORDERS OF PROTECTION FOR A BIOLOGICAL GRANDFATHER AND A STEPGRANDFATHER EXPLAINED (THIRD DEPT).
GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA.
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PETITIONER WAITED EIGHT MONTHS WITHOUT RECEIVING A DECISION ON THE ADMINISTRATIVE APPEAL OF THE DENIAL OF HIS GRIEVANCE BEFORE FILING AN ARTICLE 78 CONTESTING THE DENIAL; PETITIONER WAS ENTITED TO THE “FUTILITY EXCEPTION” TO THE REQUIREMENT THAT HE EXHAUST ALL ADMINISTRATIVE REMEDIES BEFORE TURNING TO THE COURTS (THIRD DEPT).
STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY.

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