Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered February 18, 2015, which granted the petition seeking to, among other things, amend and seal an indicated report of child maltreatment by petitioner, to the extent of annulling the report and the determination of an administrative law judge (ALJ), dated February 11, 2014, which had denied petitioner’s request, and remanding the matter to respondents for further proceedings, affirmed, without costs.
Respondent New York City Administration for Children’s Services (ACS) explicitly concluded, after a two-month long investigation, that petitioner’s child was not “likely to be in immediate or impending danger of serious harm.” Nonetheless, the ALJ determined that the child is in imminent danger. Accordingly, and as more fully set forth below, the motion court correctly found that the ALJ’s decision was based on an error of law in that it misapplied the legal standard, lacked a reason[402]*402able basis, and was made without regard to the facts (CPLR 7803 [3]; see also Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]). Moreover, the motion court correctly found that the ALJ failed to consider the 10 factors set forth in the Guidelines for Determining Whether Indicated Instances of Child Abuse and Maltreatment Are Relevant and Reasonably Related to Employment or Licensure (the guidelines), which is published by respondent New York State Office of Child and Family Services (OCFS).
Before addressing the legal issues, it is important to clarify exactly what is at stake on this appeal. No one disagrees that what petitioner did was foolish and demonstrated poor judgment. However, notwithstanding that, no city or state agency has contended that petitioner’s son should be removed from her, or that she cannot safely care for him, or that her care of him should be supervised by any court or agency. What is at issue here is solely whether her name should be maintained on a list which would make it difficult for her to obtain a job in childcare, which is her chosen profession.
The essential underlying facts are undisputed. At the time of the relevant events, petitioner, then 25, and her five-year-old son lived with petitioner’s parents. Petitioner had an associate’s degree in early childhood education, and was planning to obtain a bachelor’s degree and pursue a career in that field. On December 30, 2012, petitioner and her son entered Bloomingdale’s department store. After they emerged from a fitting room, a store detective detained petitioner, and found a coat hidden under her own coat and several concealed cell phone cases. In addition, he found two coats under her son’s clothing, and determined that the child was wearing a pair of boots for which petitioner had not paid. Petitioner immediately phoned her family and arranged for her sister to pick her child up.1 Petitioner was arrested for shoplifting and later pleaded guilty to disorderly conduct, a violation, which was later sealed. She has no criminal record from this incident, or before.
For the next two months, ACS conducted an investigation of a report of child maltreatment to the Statewide Central Register of Child Abuse and Maltreatment (SCR) based on these events. The store detective reported that, during the incident, the child was “not at all distraught,” and was playing video games and “interacting normally.” After visits to [403]*403petitioner’s home, a Child Protective Specialist (CPS) concluded that the child did not need medical or mental health treatment and that the petitioner was not a danger to the child. The investigation established that neither petitioner nor her family had any history with ACS, and that petitioner’s mother, father and sisters were all surprised by her actions on December 30, and had never known her to have done anything similar in the past, consistent with petitioner having no prior criminal history. Petitioner’s family members also reported having no concerns for her ability to care for her son, and uniformly stated that he was well cared for. Similarly, the child’s school social worker confirmed that she had never had any reason for concern, and the child had nearly perfect school attendance. Petitioner advised the investigator that she did not use physical discipline, but disciplined her son by giving him “timeouts” and taking away games. The ACS investigator observed that the child had no marks or other signs of physical harm.
The child, interviewed on at least three occasions, was “clean, healthy looking and cared for,” “calm,” and consistently stated that he felt safe and happy and was not afraid of anyone at home. When asked, he stated that the police took his mother to jail because she stole, and that she had not told him to steal. Although petitioner declined to discuss the details of the events of December 30 on the advice of her attorney, she told the ACS investigator that she had “learned her lesson.”
ACS’s investigation summary concluded that “there is no child [ ] likely to be in immediate or impending danger of serious harm,” the “Final Risk Rating” was “Low,” “No Safety Factors were identified at this time,” and “No Safety Plan/ Controlling Interventions are necessary at this time.” Consistent with its findings, ACS did not commence a neglect proceeding against petitioner, or in any other way seek the assistance of a court with regard to petitioner’s child. Nonetheless, the final progress narrative states: “The investigation is approved for closing indicated. Child reported that his mother was arrested with him in her care due to her stealing. CPS is to provide mom with information to community based services such as parenting to teach her appropriate disciplinary method as well as decision making” (emphasis added). Despite this conclusion, the record does not show that ACS saw any need to, or did, take any steps to ensure that petitioner took a parenting class or engaged in any other community based services.
Once petitioner was advised that OCFS determined, as stated above, that the report against her was “indicated,” [404]*404petitioner promptly requested that SCR amend the report to “unfounded.” OCFS denied the request, and scheduled a hearing.
At the hearing on October 25, 2013, the ALJ received into evidence only the ACS investigation notes and summary, and the New York State Criminal Record search for petitioner dated October 23, 2013, which showed that petitioner had no criminal history as of that date. No witnesses testified. Counsel for the parties made opening and closing statements, and statements on the record denominated “direct testimony ... in narrative form” for their respective clients.
The ALJ issued a decision dated February 11, 2014 (the decision). The ALJ determined that petitioner had “maltreated” her child and therefore denied her request that the “indicated” report against her be amended.
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Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered February 18, 2015, which granted the petition seeking to, among other things, amend and seal an indicated report of child maltreatment by petitioner, to the extent of annulling the report and the determination of an administrative law judge (ALJ), dated February 11, 2014, which had denied petitioner’s request, and remanding the matter to respondents for further proceedings, affirmed, without costs.
Respondent New York City Administration for Children’s Services (ACS) explicitly concluded, after a two-month long investigation, that petitioner’s child was not “likely to be in immediate or impending danger of serious harm.” Nonetheless, the ALJ determined that the child is in imminent danger. Accordingly, and as more fully set forth below, the motion court correctly found that the ALJ’s decision was based on an error of law in that it misapplied the legal standard, lacked a reason[402]*402able basis, and was made without regard to the facts (CPLR 7803 [3]; see also Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]). Moreover, the motion court correctly found that the ALJ failed to consider the 10 factors set forth in the Guidelines for Determining Whether Indicated Instances of Child Abuse and Maltreatment Are Relevant and Reasonably Related to Employment or Licensure (the guidelines), which is published by respondent New York State Office of Child and Family Services (OCFS).
Before addressing the legal issues, it is important to clarify exactly what is at stake on this appeal. No one disagrees that what petitioner did was foolish and demonstrated poor judgment. However, notwithstanding that, no city or state agency has contended that petitioner’s son should be removed from her, or that she cannot safely care for him, or that her care of him should be supervised by any court or agency. What is at issue here is solely whether her name should be maintained on a list which would make it difficult for her to obtain a job in childcare, which is her chosen profession.
The essential underlying facts are undisputed. At the time of the relevant events, petitioner, then 25, and her five-year-old son lived with petitioner’s parents. Petitioner had an associate’s degree in early childhood education, and was planning to obtain a bachelor’s degree and pursue a career in that field. On December 30, 2012, petitioner and her son entered Bloomingdale’s department store. After they emerged from a fitting room, a store detective detained petitioner, and found a coat hidden under her own coat and several concealed cell phone cases. In addition, he found two coats under her son’s clothing, and determined that the child was wearing a pair of boots for which petitioner had not paid. Petitioner immediately phoned her family and arranged for her sister to pick her child up.1 Petitioner was arrested for shoplifting and later pleaded guilty to disorderly conduct, a violation, which was later sealed. She has no criminal record from this incident, or before.
For the next two months, ACS conducted an investigation of a report of child maltreatment to the Statewide Central Register of Child Abuse and Maltreatment (SCR) based on these events. The store detective reported that, during the incident, the child was “not at all distraught,” and was playing video games and “interacting normally.” After visits to [403]*403petitioner’s home, a Child Protective Specialist (CPS) concluded that the child did not need medical or mental health treatment and that the petitioner was not a danger to the child. The investigation established that neither petitioner nor her family had any history with ACS, and that petitioner’s mother, father and sisters were all surprised by her actions on December 30, and had never known her to have done anything similar in the past, consistent with petitioner having no prior criminal history. Petitioner’s family members also reported having no concerns for her ability to care for her son, and uniformly stated that he was well cared for. Similarly, the child’s school social worker confirmed that she had never had any reason for concern, and the child had nearly perfect school attendance. Petitioner advised the investigator that she did not use physical discipline, but disciplined her son by giving him “timeouts” and taking away games. The ACS investigator observed that the child had no marks or other signs of physical harm.
The child, interviewed on at least three occasions, was “clean, healthy looking and cared for,” “calm,” and consistently stated that he felt safe and happy and was not afraid of anyone at home. When asked, he stated that the police took his mother to jail because she stole, and that she had not told him to steal. Although petitioner declined to discuss the details of the events of December 30 on the advice of her attorney, she told the ACS investigator that she had “learned her lesson.”
ACS’s investigation summary concluded that “there is no child [ ] likely to be in immediate or impending danger of serious harm,” the “Final Risk Rating” was “Low,” “No Safety Factors were identified at this time,” and “No Safety Plan/ Controlling Interventions are necessary at this time.” Consistent with its findings, ACS did not commence a neglect proceeding against petitioner, or in any other way seek the assistance of a court with regard to petitioner’s child. Nonetheless, the final progress narrative states: “The investigation is approved for closing indicated. Child reported that his mother was arrested with him in her care due to her stealing. CPS is to provide mom with information to community based services such as parenting to teach her appropriate disciplinary method as well as decision making” (emphasis added). Despite this conclusion, the record does not show that ACS saw any need to, or did, take any steps to ensure that petitioner took a parenting class or engaged in any other community based services.
Once petitioner was advised that OCFS determined, as stated above, that the report against her was “indicated,” [404]*404petitioner promptly requested that SCR amend the report to “unfounded.” OCFS denied the request, and scheduled a hearing.
At the hearing on October 25, 2013, the ALJ received into evidence only the ACS investigation notes and summary, and the New York State Criminal Record search for petitioner dated October 23, 2013, which showed that petitioner had no criminal history as of that date. No witnesses testified. Counsel for the parties made opening and closing statements, and statements on the record denominated “direct testimony ... in narrative form” for their respective clients.
The ALJ issued a decision dated February 11, 2014 (the decision). The ALJ determined that petitioner had “maltreated” her child and therefore denied her request that the “indicated” report against her be amended. Although he did not find any evidence in the record that petitioner’s child had been harmed, he concluded that her “action creates an imminent risk to the child’s emotional condition in that [the child] will not control his impulses and will proceed from accompanying his mother in shoplifting to doing it on his own.” The decision also found that petitioner’s actions were relevant and reasonably related to childcare employment, adoption and foster care because petitioner had failed to present “evidence of remedial steps which would prevent this behavior from reoccuring.” This roughly corresponds to guidelines factor 8, information regarding rehabilitation, but the decision does not address any of the other nine guidelines factors.
Petitioner sought judicial review of the decision pursuant to CPLR 7803 (3), which authorizes the court to determine “whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (CPLR 7803 [3]). The motion court granted the petition, and held that (1) the ALJ made errors of law because the undisputed facts do not, as a matter of law, show that the petitioner put the child in “imminent danger,” which is the requisite standard for a finding of maltreatment; and (2) the ALJ erred by failing to consider the 10 guideline factors for determining whether the acts giving rise to the report were relevant and reasonably related to employment in childcare, provision of foster care, or adoption.
Under New York’s child protective scheme, a report of suspected child abuse or neglect will be marked “indicated” if the local agency determines after investigation that there is “some credible evidence of the alleged abuse or maltreatment” (Social Services Law § 412 [7]). All childcare agencies and other [405]*405agencies licensed by the state to provide certain services to children are required to inquire whether applicants for employment or to become foster or adoptive parents are subjects of indicated reports (Social Services Law § 424-a). An agency may choose to hire or approve persons on the list of those with indicated reports, but if it does, the agency must “maintain a written record, as part of the application file or employment record, of the specific reasons why such person was determined to be appropriate” for approval (Social Services Law § 424-a [2] [a]). The names of subjects of indicated reports remain on the list until 10 years after the youngest child referred to in the report turns 18, unless earlier expunged (Social Services Law § 422 [6]).
If the subject of an indicated report timely requests that SCR amend the report, SCR must consider whether there is sufficient evidence that the subject committed child maltreatment or abuse, and, if so, must also determine whether, based on the guidelines, the acts of maltreatment or abuse are “relevant and reasonably related” to, among other things, certain employment involving children, or approval as a foster or adoptive parent (Social Services Law § 422 [8] [a] [ii]). If the request to amend the report is denied, the person is entitled to a fair hearing (Social Services Law § 422 [8] [a] [v]; 18 NYCRR 434.3 [a] [2]).
Until 2008, the Social Services Law provided that the investigating child protective agency only had to show that there was “some credible evidence” of maltreatment or abuse, at both the SCR administrative review and at any subsequent fair hearing. However, in 1994 and 1996, respectively, the Second Circuit and the New York State Court of Appeals held that the use of the “some credible evidence” standard violates the Due Process Clause of the US Constitution because the resulting impediment to potential future employment, licensure as foster parents, or approval as adoptive parents as a consequence of an indicated report implicates constitutionally protected liberty interests (Matter of Lee TT. v Dowling, 87 NY2d 699 [1996]; Valmonte v Bane, 18 F3d 992 [2d Cir 1994]). As a result, the Social Services Law was amended in 2008 to require that the state prove child maltreatment or abuse at the administrative level by a fair preponderance of the evidence (Social Services Law § 422 [8] [a] [i], [ii]; [b] [ii]; [c] [ii]; see also L 2008, ch 323, §§ 10, 11; 18 NYCRR 434.3).2 Only if the agency makes that determination may it go on to consider whether the [406]*406person is unsuited for employment in the childcare field (Social Services Law § 422 [8] [c] [ii]).
The fair preponderance of the evidence standard requires the finder of fact to weigh conflicting evidence, and is intended to protect against rulings based on “ ‘the subjective values of’ the factfinder,” a risk that is particularly high in cases where child abuse and neglect are alleged (Valmonte, 18 F3d at 1004, quoting Santosky v Kramer, 455 US 745, 762 [1982]).
The statutory definition of a maltreated child, as relevant to this matter, includes a child under 18 “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care ... in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment; or by misusing a drug or drugs; or by misusing alcoholic beverages to the extent that he loses self-control of his actions; or by any other acts of a similarly serious nature requiring the aid of the court” (18 NYCRR 432.1 [b] [1] [ii] [emphasis added]; see also Family Ct Act § 1012 [f] [i] [B] [supplying an identical definition of the term “neglected child”]).
Consistent with this, the Court of Appeals held in Nicholson v Scoppetta (3 NY3d 357, 368 [2004]) that a finding of neglect requires a showing, by a preponderance of the evidence, that (1) a child’s “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired,” and (2) “the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship.” This standard is intended to “ensure[ ] that the [agency] . . . will focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior” (id. at 369; see also Matter of Parker v Carrion, 80 AD3d 458, 459 [1st Dept 2011] [parent who intended to hit child on her behind, but instead hit her on the face with a belt, entitled to amendment of report finding maltreatment where there was no evidence the child required medical treatment or that the parent used excessive corporal punishment]).
Under article 10 of the Family Court Act, “ ‘[impairment of emotional health’ and ‘impairment of mental or emotional [407]*407condition’ includes a state of substantially diminished psychological or intellectual functioning in relation to, but not limited to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and reason, or acting out or misbehavior, including incorrigibility, ungovernability or habitual truancy; provided, however, that such impairment must be clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child” (Family Ct Act § 1012 [h]). A finding of imminent risk of impairment “must be near or impending, not merely possible” (Nicholson v Scoppetta, 3 NY3d at 369), and, particularly when based on a single incident, must “make the necessary causative connection to all the surrounding circumstances that may or may not produce impairment” (Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d 73, 79 [1995] [positive toxicology for controlled substance in newborn infant and mother generally not sufficient to prove imminent danger of impairment]; see also Nicholson, 3 NY3d at 369).
In this case, there was no evidence before the ALJ that the child suffered any injury or required any treatment as a result of petitioner’s conduct, and no evidence that petitioner had ever engaged in the behavior at issue at any other time. Instead, the only evidence at the hearing with regard to harm to the child was the ACS finding that the child had not suffered any harm and that petitioner was not a danger to the child. Consequently, the ALJ’s finding of maltreatment was not supported by a preponderance of evidence and was therefore made in violation of lawful procedure. Indeed, this Court and its sister courts have refused to find maltreatment in cases involving far more immediate harm (see Matter of Parker v Carrión, 80 AD3d at 458; Matter of Sulayne G. [Sulay J.], 126 AD3d 791 [2d Dept 2015] [corporal punishment without evidence of physical or emotional injury and a pattern of such behavior did not constitute maltreatment]; Matter of Senande v Carrion, 83 AD3d 851 [2d Dept 2011] [mother who hit child on thigh with house slipper, leaving a mark, did not commit maltreatment where no evidence of lasting injury or that mother had ever done this before]).
In the absence of any evidence to support a finding that petitioner had caused actual harm to the child, the ALJ stated, “there are circumstances where a parent’s behavior is so outrageous, that in and of itself, creates an imminent risk of emotional harm to the child .... Exploitation of a child to commit a crime, as well as teaching a child how to commit a [408]*408crime, rises to such a level of outrageous behavior .... The [petitioner’s] action creates an imminent risk to the child’s emotional condition in that [the child] will not control his impulses, and will proceed from accompanying his mother in shoplifting to doing it on his own.” This is just the type of imposition of the factfinder’s subjective views of parental behavior that the use of the higher evidentiary standard was intended to correct (Valmonte, 18 F3d at 1004; Nicholson, 3 NY3d at 368-369). Instead of applying the correct legal standard to determine whether there was serious potential for harm requiring the aid of a court, the ALJ substituted his conjecture that the child might commit crimes in the future, even though the record reveals that the mother had no criminal history, that the child understood that his mother was arrested because she tried to steal, and that he was, by all accounts, calm, happy, well cared for, well behaved in school and not in need of any medical or mental health intervention.
The ALJ cites Matter of Rashard D. (15 AD3d 209 [1st Dept 2005]) for the proposition that the child in this case was in imminent danger of physical harm due to his mother’s acts. However, Rashard D. involved a parent who made her 12-year-old child rob a bank by handing a teller a note that said “GIVE ME $30,000 OR I WILL SHOOT YOU!!!” (id. at 210). Here, there was no evidence that petitioner’s child was ever in any physical danger. No mental health expert testified as to the impairment, or imminent risk of impairment, of the child’s emotional or mental condition as a result of petitioner’s behavior, and ACS had made an explicit finding to the contrary.
These facts also distinguish this case from the cases relied upon by the ALJ for the proposition that certain parental behaviors create imminent risk of emotional harm. In each of those cases, the court relied on mental health experts’ findings in determining that the subject child was emotionally harmed by a parent’s behavior (Matter of Christina LL., 233 AD2d 705 [3d Dept 1996], lv denied 89 NY2d 812 [1997]; Matter of Jessica G., 151 Misc 2d 694 [Fam Ct, Richmond County 1991]).3
Similarly, Matter of Bernthon v Mattioli (34 AD3d 1165 [3d [409]*409Dept 2006], appeal withdrawn 8 NY3d 918 [2007]), cited by the dissent and by respondents for the proposition that using a child to facilitate shoplifting constitutes maltreatment as a matter of law, does not so hold. In that case, the only issue on appeal was the admissibility of hearsay statements at a custody modification trial. The Appellate Division, Third Department held that the hearsay exception under Family Court Act § 1046 (a) (vi) applies in custody proceedings involving allegations of abuse or neglect (id. at 1165). Indeed, the Court in Bernthon found only that the child’s statements about having been used to aid her mother’s shoplifting “would support a finding of neglect” (id. at 1166), but no neglect proceeding was brought, the issue of neglect was not tried, and no finding of neglect was made, since the applicable standard was whether a change of circumstances justifying modification had occurred, and the custody arrangement that would best serve the child’s interest.
The legal questions at stake in Bernthon are very different than the question in this case: whether the ALJ applied the proper legal standard in determining whether respondents met their burden at the hearing to show imminent harm to the child justifying government intrusion into petitioner’s private life. Furthermore, the facts of Bernthon are distinguishable from the instant matter. In Bernthon, the mother had a “history of petit larceny,” and had violated a court order by discussing the litigation with her daughter and conveying that she would never see her mother again if she spoke to child protective service workers (34 AD3d at 1166). Here, petitioner had no criminal history, her family members interviewed all agreed that her behavior was out of character, petitioner told the ACS investigator that she had “learned her lesson,” the child was reportedly “not at all distraught,” and ACS did not find the child to be in danger.
Similarly, the cases cited by respondents for the proposition that shoplifting in and of itself creates a risk of violence and physical harm to the child are also distinguishable. In the first instance, each is an excessive sentence appeal, having nothing to do with a finding of child maltreatment. In People v Jones (199 AD2d 648 [3d Dept 1993], lv denied 83 NY2d 854 [1994]), the defendant threatened to use a baseball bat as a weapon, and choked the property owner’s son, whom the defendant encountered while attempting to burglarize the property. People v Callahan (89 AD2d 517, 518 [1st Dept 1982]) involved a robbery arising out of a “drunken escapade,” in which the complaining witness sustained injuries. There was no evidence that petitioner in this case intended to or did commit violence. [410]*410Rather, ACS’s investigation notes indicate that she was cooperative when stopped by the store detective.
The cases relied on by respondents involving unreasonable exposure of children to risk by other behavior are similarly inapposite, since all involve far more extreme parental behavior resulting in obvious danger. In Matter of Rosemary V. (Jorge V.) (103 AD3d 484 [1st Dept 2013]), a father left his children home alone at night while he engaged in a drug transaction, as a result of which the children locked themselves out of the apartment and went to a stranger’s home. In Matter of Febles v Dutchess County Dept. of Social Servs. Child Protective Servs. (68 AD3d 993 [2d Dept 2009]), a mother left her seven-year-old child alone in a running car for 20 minutes. In Matter of Pedro C. (Josephine B.) (1 AD3d 267 [1st Dept 2003]), a mother was intoxicated on the street at night with her two-year-old child.
Finally, the ALJ’s determination that petitioner’s actions were reasonably related to a position in childcare, the field of study petitioner is pursuing, was not rational. The legal standards for determining whether a child is maltreated (18 NYCRR 432.1 [b]; Nicholson, 3 NY3d at 368-369) are repeated in the guidelines. The ALJ failed to set forth his consideration of the relevant guidelines for making such a determination, many of which, as the motion court pointed out, weighed in petitioner’s favor, including factors 2 (the seriousness and extent of any injury to child), 3 (harmful effect on the child of the subject’s actions or inactions), 5 (time since most recent incident of maltreatment), 6 (number of indicated incidents of abuse or maltreatment), 8 (a) (whether the acts have been repeated) and 10 (whether reported behavior involved serious injury to, or death of, a child). The single factor the ALJ discussed, factor 8 (b), “any information produced ... in regard to . . . rehabilitation,” failed to consider that all of the evidence at the hearing indicated that petitioner has never been convicted of any crime, including for the events of December 30, 2012; no further such incidents had occurred; petitioner had no prior history with ACS; all of her family members interviewed expressed surprise at her behavior on the occasion leading to the report; and she told the caseworker she had “learned her lesson.”
Like the plaintiffs in the cases leading up to amendment of Social Services Law § 422 to require a higher burden of proof to deny a request to amend an indicated child abuse or neglect report, petitioner here will essentially be barred from pursuing a career in her chosen field of early childhood development, since “she will be refused employment simply because her [411]*411inclusion on the list results in an added burden on employers who will therefore be reluctant to hire her” (Valmonte, 18 F3d at 1001).
Furthermore, although “[a] trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding” (Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d at 79), the ALJ improperly inferred that the behavior in which petitioner engaged “will in fact reoccur,” based solely on petitioner’s failure to testify at the hearing, even though no evidence supported such a finding.
Accordingly, we affirm the motion court’s order annulling the indicated report against petitioner.
Concur—Mazzarelli, Andrias and Gesmer, JJ.