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You are here: Home1 / Evidence2 / Hearsay Supporting Child Abuse Report Seriously Controverted—Report...
Evidence, Family Law

Hearsay Supporting Child Abuse Report Seriously Controverted—Report Expunged

The Third Department determined a report maintained by the central register of child abuse and maltreatment should have been amended to state “unfounded” and expunged. Mother brought an Article 78 petition to amend the report, which stated abuse was “indicated.” The Third Department found that the hearsay evidence in support of the report was seriously controverted by the petitioner’s evidence, which included expert evidence about the cause of the child’s broken leg:

“To establish maltreatment, the agency was required to show by a fair preponderance of the evidence that the physical, mental or emotional condition of the child had been impaired or was in imminent danger of becoming impaired because of a failure by petitioner to exercise a minimum degree of care in providing the child with appropriate supervision or guardianship” … . As there is no dispute that the child suffered a broken leg, there can be no question that her physical condition was in fact impaired. Accordingly, our inquiry distills to whether the record supports a finding that such impairment was the result of petitioner’s failure to provide appropriate supervision and guardianship.

In this regard, the evidence against petitioner consisted primarily of the investigation progress notes, which summarized the caseworker’s interviews with, among others, petitioner’s son, the child’s treating orthopedic surgeon and the child’s geneticist. “[T]here is no question that hearsay is admissible in expungement hearings and, if sufficiently relevant and probative, may constitute substantial evidence to support the underlying determination” … . That said, the substantial evidence standard is not satisfied where, as here, the hearsay evidence at issue is “seriously controverted” … . Matter of Gwen Y. v New York State Off. of Children & Family Servs., 2015 NY Slip Op 07710, 3rd Dept 10-22-15

 

October 22, 2015
Tags: Third Department
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MATTER REMITTED TO THE COMMISSIONER OF HEALTH TO DETERMINE WHETHER BONE SURGERY TO REPAIR CANCER-RELATED DAMAGE TO PETITIONER’S JAW IS COVERED UNDER MEDICAID, IF THERE IS A CONFLICT BETWEEN THE DSS REGULATIONS AND THE DEPARTMENT OF HEALTH’S GUIDELINES, THE REGULATIONS CONTROL (THIRD DEPT).
QUESTION OF FACT WHETHER PARTIAL PERFORMANCE TOOK ORAL AGREEMENT OUT OF THE STATUTE OF FRAUDS.
FOUR CLASSES PROPERLY CERTIFIED TO BRING CLASS ACTION SUITS BASED UPON THE CONTAMINATION OF AIR, WATER, REAL PROPERTY AND PEOPLE WITH TOXIC CHEMICALS (THIRD DEPT).
PLAINTIFF’S EXPERT DID NOT PRESENT ANY EVIDENCE DEMONSTRATING THE REMOTELY OPERATED CRANE COULD FEASIBLY BE MADE SAFER; THEREFORE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS PRODUCTS LIABILITY CASE WAS PROPERLY GRANTED (THIRD DEPT).
MOTHER, ALTHOUGH A FIT AND LOVING PARENT, WAS PROPERLY STRIPPED OF LEGAL CUSTODY, DISSENT DISAGREED (THIRD DEPT).
THE MARIJUANA REGULATION AND TAXATION ACT (MRTA) APPLIES TO THE EVIDENCE PRESENTED AT A SUPPRESSION HEARING AND PRECLUDES A FINDING OF PROBABLE CAUSE TO SEARCH A VEHICLE BASED SOLELY ON THE ODOR OF MARIJUANA; THEREFORE THE STATUTE APPLIES HERE WHERE, ALTHOUGH THE SEARCH WAS PRE-ENACTMENT, THE SUPPRESSION HEARING WAS POST-ENACTMENT (THIRD DEPT).
SUNY ALBANY NOT PROTECTED BY GOVERNMENT IMMUNITY IN THIS CASE BROUGHT BY A STUDENT WHO ALLEGED SHE WAS ASSAULTED IN HER DORM ROOM BY A PERSON NOT AUTHORIZED TO BE IN THE DORM; THERE WERE QUESTIONS OF FACT ABOUT THE ADEQUACY OF SECURITY AND THE FORESEEABILITY OF THE ASSAULT (THIRD DEPT). ​

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