Bhagoji v. Wing

—Determination after fair hearing of respondent Acting Commissioner of New York State Department of Social Services, dated September 11, 1996, which affirmed a determination by the New York State Commission on Quality of Care for the Mentally Disabled that petitioner sexually abused an adolescent psychiatric patient, and denied petitioner’s request for expunction of an indicated report of that abuse from the New York State Central Register of Child Abuse and Maltreatment, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Harold Tompkins, J.], entered June 16, 1997) dismissed, without costs. It is clear that respondent evaluated the report of abuse under the required “fair preponderance of the evidence” standard (see, Matter of Lee TT. v Dowling, 87 NY2d 699), and, upon review, we too find that the report is supported by a fair preponderance of the evidence. Petitioner’s argument that the hearsay testimony introduced against him was unworthy of belief is without merit, because hearsay is admissible in administrative proceedings and may constitute substantial evidence if sufficiently relevant and probative (see, People ex rel. Vega v Smith, 66 NY2d 130, 139), and credibility is for the fact finder to determine (supra, at 140; Matter of Mary Y. v Perales, 186 AD2d 325; Matter of Kenneth VV. v Wing, 235 AD2d 1007, 1010). We would add that numerous, objectively ascertainable circumstances support respondent’s credibility findings. Concur — Rosenberger, J. P., Ellerin, Nardelli and Wallach, JJ.