You are here: / / THE HEARING OFFICER RECOMMENDED THAT JUSTICE DD, A SEVERELY DISABLED MAN,...
,

THE HEARING OFFICER RECOMMENDED THAT JUSTICE DD, A SEVERELY DISABLED MAN, REMAIN AT HIS CURRENT PLACEMENT IN MASSACHUSETTS AND NOT BE MOVED TO A NEW PLACEMENT IN NEW YORK; THE COMMISSIONER OF THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES (OPWDD), NEARLY A YEAR LATER, REJECTED THE HEARING OFFICER’S RECOMMENDATION AND ORDERED THE NEW PLACEMENT; BECAUSE JUSTICE DD’S CONDITION HAD WORSENED DURING THAT TIME, THE COMMISSIONER’S DETERMINATION WAS ANNULLED (THIRD DEPT).

The Third Department annulled the determination of the Office for People with Developmental Disabilities (OPWDD). The Commissioner of the OPWDD rejected the hearing officer’s findings and ordered that Justice DD, the disabled man, be removed from his current placement in Massachusetts and placed in New York. The Third Department held that the nearly one-year delay between the hearing officer’s recommendation that Justice DD remain placed in Massachusetts and the Commissioner’s rejection of the recommendation, during which Justice DD’s condition had deteriorated, required annulment of the Commissioner’s ruling:

… [D]espite the Legislature’s use of the word “shall” in specifying that respondent [the Commissioner] is to issue a determination within 30 days of adjournment of the hearing, this language was merely directory based upon the absence of any “specific consequence to flow from the administrative agency’s failure to act in violation of the time limit” … .

“When an administrative body fails to comply with procedural provisions that are merely directory, relief will be granted only if petitioners show that substantial prejudice resulted from the noncompliance” … . We find that petitioners have made such a showing here and, as a result, respondent “must face the consequences of [her] delays” … . Matter of Hannah DD. v Neifeld, 2024 NY Slip Op 05167, Third Dept 10-17-24

Practice Point: The regulation that requires the Commissioner of the OPWDD to make a ruling on the placement of a disabled person within 30 days of the adjournment of the hearing is merely “directory,” not “mandatory.” However, if, as here, the failure to issue the ruling within 30 days results in prejudice to the disabled person, the delay is a valid ground for annulment of the Commissioner’s ruling.​

 

You might also like
Criteria for an Application for a Use Variance Explained—Not Met Here
Defendant-Doctor in a Medical Malpractice Action May Be Questioned (by the Plaintiff) As an Expert About His Own Treatment of Plaintiff
BECAUSE DEFENSE COUNSEL DID NOT CONSENT TO THE ISSUANCE OF A PROTECTIVE ORDER REGARDING THE PEOPLE’S DISCOVERY OBLIGATIONS, THE JUDGE WAS REQUIRED TO HOLD A HEARING; MATTER REMITTED; ON REMITTAL THE PEOPLE SHOULD PROVIDE WRITTEN NOTICE OF THE REQUEST TO DEFENSE COUNSEL AND, TO FACILITATE ANY REQUEST FOR AN EXPEDITED REVIEW, DEFENSE COUNSEL SHOULD BE PROVIDED WITH A COPY OF THE PROTECTIVE ORDER (THIRD DEPT). ​
PLAINTIFF NEED NOT ELIMINATE ALL OTHER POSSIBLE CAUSES OF INJURY TO MAKE OUT A PRIMA FACIE CASE OF MEDICAL MALPRACTICE, MOTION FOR A DIRECTED VERDICT SHOULD NOT HAVE BEEN GRANTED.
DEFENSE COUNSEL’S INTRODUCING INTO EVIDENCE A SEARCH WARRANT APPLICATION WHICH IMPLICATED THE DEFENDANT IN CRIMES CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL (THIRD DEPT).
Payroll Deduction for Health Benefits Should Be Added to Teacher’s Salary When Calculating Retirement Benefit
Claimant Entitled to Partial Disability Benefits for a Back Injury Until the Relationship Between the Back Injury and Claimant’s Inability to Work Was Raised for the First Time at the Hearing—Claimant Had Stopped Working After an Unrelated Knee Injury
QUESTION OF FACT WHETHER AN ORAL CONTRACT WAS FORMED (THIRD DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANT HAD A RIGHT TO BE PRESENT DURING THE SANDOVAL/MOLINEUX DISCUSSIONS... FAMILY COURT’S RULING THAT A MASSACHUSETTS COURT WAS THE MORE CONVENIENT...