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THE CONTROLLING STATUTE DOES NOT PROVIDE THAT THE CITY CAN SUE FOR DAMAGES FOR INJURY TO TREES, THE REGULATION WHICH PURPORTS TO ALLOW SUCH A SUIT DECLARED INVALID (FIRST DEPT).

The First Department, reversing Supreme Court, determined the plaintiff city was not authorized to sue defendant for money damages for defendant’s alleged injury to tress during sidewalk repair. Although a regulation allowed the suit, the controlling statute did not. The regulation was declared invalid:

The motion court erred in ruling that the City has the capacity to sue for the negligent destruction of its property. A municipality does not have a common-law right to bring suit; its right to sue, if any, “must be derived from the relevant enabling legislation or some other concrete statutory predicate” … . Rules of City of New York Department of Parks and Recreation (DPR) (56 RCNY) § 5-01(c) permits DPR to “seek damages” against persons who “cut, remove, or destroy” its trees without a permit … . However, the relevant enabling legislation, which authorizes DPR to promulgate rules regarding the cutting, removal, and destruction of its trees, does not authorize a municipal right of action to recover money damages for injury to the trees (see New York City Charter § 533[a][9]; Administrative Code of the City of New York § 18-107[e]). 56 RCNY 5-01(c) is therefore “out of harmony” with the statute, and we hold that it is invalid … . City of New York v Tri-Rail Constr., Inc., 2018 NY Slip Op 04954, First Dept 7-3-18

MUNICIPAL LAW (ADMINISTRATIVE LAW, THE CONTROLLING STATUTE DOES NOT PROVIDE THAT THE CITY CAN SUE FOR DAMAGES FOR INJURY TO TREES, THE REGULATION WHICH PURPORTS TO ALLOW SUCH A SUIT DECLARED INVALID (FIRST DEPT))/ADMINISTRATIVE LAW (MUNICIPAL LAW, THE CONTROLLING STATUTE DOES NOT PROVIDE THAT THE CITY CAN SUE FOR DAMAGES FOR INJURY TO TREES, THE REGULATION WHICH PURPORTS TO ALLOW SUCH A SUIT DECLARED INVALID (FIRST DEPT))/TREES (MUNICIPAL LAW, ADMINISTRATIVE LAW,  THE CONTROLLING STATUTE DOES NOT PROVIDE THAT THE CITY CAN SUE FOR DAMAGES FOR INJURY TO TREES, THE REGULATION WHICH PURPORTS TO ALLOW SUCH A SUIT DECLARED INVALID (FIRST DEPT))

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PETITION SEEKING MEDICAL ASSISTANCE SHOULD NOT HAVE BEEN DENIED BASED UPON THE INABILITY TO DETERMINE THE FINANCIAL RESOURCES AVAILABLE TO THE NURSING HOME RESIDENT’S ESTRANGED WIFE, COURT MAY NOT CONSIDER THEORY NOT RAISED BEFORE THE AGENCY (FOURTH DEPT).

The Fourth Department, annulling the determination of the Erie County Department of Social Services, held that petitioner’s application for medical assistance should not have been denied on the ground that the financial resources available to the nursing home resident’s estranged wife could not be determined. The court noted that it may not consider any theories argued on appeal that were not raised before the agency

[18 NYCRR] Section 360-2.3 (a) (2) provides that a medical assistance “applicant/recipient will not have eligibility denied or discontinued solely because he/she does not possess and cannot obtain information about the income or resources of a nonapplying legally responsible relative who is not living with him/her.” Although denial of an application may nonetheless be appropriate under section 360-2.3 (a) (3) if an applicant/recipient refuses to grant permission for the examination of non-public records, here the parties do not dispute that petitioner and the resident cooperated with all efforts to obtain information from the resident’s estranged wife.

We reject respondent’s contention that the determination should be confirmed because, in the absence of a showing that denial would subject the resident to undue hardship, denial of petitioner’s application was permissible pursuant to 18 NYCRR 360-4.10. Regardless of the merits of that contention, we note that ” [i]t is the settled rule that judicial review of an administrative determination is limited to the grounds invoked by the agency’ ” Matter of Waterfront Ctr. for Rehabilitation & Healthcare v New York State Dept. of Health, 2018 NY Slip Op 04881, Fourth Dept 6-29-18

​MEDICAID (PETITION SEEKING MEDICAL ASSISTANCE SHOULD NOT HAVE BEEN DENIED BASED UPON THE INABILITY TO DETERMINED THE FINANCIAL RESOURCES AVAILABLE TO THE NURSING HOME RESIDENT’S ESTRANGED WIFE (FOURTH DEPT))/ADMINISTRATIVE LAW (MEDICAID, PETITION SEEKING MEDICAL ASSISTANCE SHOULD NOT HAVE BEEN DENIED BASED UPON THE INABILITY TO DETERMINED THE FINANCIAL RESOURCES AVAILABLE TO THE NURSING HOME RESIDENT’S ESTRANGED WIFE (FOURTH DEPT))/APPEALS (ADMINISTRATIVE LAW, MEDICAID, PETITION SEEKING MEDICAL ASSISTANCE SHOULD NOT HAVE BEEN DENIED BASED UPON THE INABILITY TO DETERMINED THE FINANCIAL RESOURCES AVAILABLE TO THE NURSING HOME RESIDENT’S ESTRANGED WIFE, COURT MAY NOT CONSIDER THEORY NOT RAISED BEFORE THE AGENCY  (FOURTH DEPT))

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NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP).

The Court of Appeal, in a full-fledged opinion by Judge Stein, reversing the Appellate Division, determined that the NYC Department of Health and Mental Hygiene and the NYC Board of Health properly amended the health code to provide that children between the ages of 6 and 59 months who attended city regulated child care or school programs must receive annual flu vaccinations. The court went through all the Boreali (71 NY2d 11-14) factors, as well as all the preemption theories:

Separation of powers challenges often involve the question of whether a regulatory body has exceeded the scope of its delegated powers and encroached upon the legislative domain of policymaking … . * * *

In Boreali and subsequent cases, we have clarified the “difficult-to-define line between administrative rule-making and legislative policy-making” by articulating four “coalescing circumstances” relevant to rendering such a determination (71 NY2d at 11 …). These circumstances are: whether (1) the regulatory agency ” balanc[ed] costs and benefits according to preexisting guidelines,’ or instead made value judgments entail[ing] difficult and complex choices between broad policy goals to resolve social problems'”… ; (2) the agency “merely filled in details of a broad policy or if it wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance'” … ; (3) the legislature had unsuccessfully attempted to enact laws pertaining to the issue… ; and (4) the agency used special technical expertise in the applicable field … . * * *

Public Health Law §§ 2164 and 2165 set forth mandatory vaccinations that are preconditions to enrollment in school and in institutions of higher education. Those statutes include exemptions, incorporate an appeal process, and explain the procedures to be followed when a student is unable to afford the necessary vaccinations. Taking each of the aforementioned statutes into consideration, the Appellate Division correctly determined that the flu vaccine rules are not preempted by state law. Garcia v New York City Dept. of Health & Mental Hygiene, 2018 NY Slip Op 04778, CtApp 6-28-18

​ADMINISTRATIVE LAW (FLU VACCINES, NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP))/MUNICIPAL LAW (FLU VACCINES, NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP))/FLU VACCINES (NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP))/SEPARATION OF POWERS (FLU VACCINES, NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP))/PREEMPTION (ADMINISTRATIVE LAW,  NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP))/DEPARTMENT OF HEALTH (NYC)  (FLU VACCINES, NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP))

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NEGLECT ALLEGATION AGAINST NURSING HOME FOR SYSTEMIC FAILURE PROPERLY FOUND TO BE SUBSTANTIATED, EVEN THOUGH THE RELATED ALLEGATIONS AGAINST TWO EMPLOYEES WERE DEEMED TO BE UNSUBSTANTIATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a dissent, reversing the Appellate Division, determined that the Justice Center for the Protection of People with Special Needs had the statutory authority to find that a neglect allegation against a nursing home was substantiated, even though the neglect allegations against two employees of the nursing home were deemed unsubstantiated. A female resident had, for the third time, been sexually assaulted by another resident in the common room while the common room was unattended. The employees were not required to be in the common room at all times. But the nursing home, the administrative law judge (ALJ) found, should have increased the level of required supervision because of the prior assaults:

Petitioner’s narrow construction of the statute would paradoxically leave the Justice Center powerless to address many systemic issues, defeating the purpose of the Act and preventing the Justice Center from protecting vulnerable persons where it is most critical to do so. As noted throughout the text and legislative history, the statutory overhaul embodied in the Act was necessary not only to address isolated incidents of abuse and neglect, but also to resolve systemic problems, such as inadequate staffing, training, and supervision, which often cause or contribute to incidents of abuse and neglect… . Indeed, systemic deficiencies may present a greater hazard to vulnerable residents than do discrete instances of employee misconduct, since employee-related incidents can often be remedied through targeted disciplinary action. Latent systemic problems, by contrast, are often more challenging to identify and more complicated to rectify—and therefore more likely to recur. Matter of Anonymous v Molik, 2018 NY Slip Op 04779, CtApp 6-28-18

​ADMINISTRATIVE LAW (SOCIAL SERVICES LAW, NEGLECT ALLEGATION AGAINST NURSING HOME FOR SYSTEMIC FAILURE PROPERLY FOUND TO BE SUBSTANTIATED, EVEN THOUGH THE RELATED ALLEGATIONS AGAINST TWO EMPLOYEES WERE DEEMED TO BE UNSUBSTANTIATED (CT APP))/SOCIAL SERVICES LAW (NURSING HOMES, NEGLECT ALLEGATION AGAINST NURSING HOME FOR SYSTEMIC FAILURE PROPERLY FOUND TO BE SUBSTANTIATED, EVEN THOUGH THE RELATED ALLEGATIONS AGAINST TWO EMPLOYEES WERE DEEMED TO BE UNSUBSTANTIATED (CT APP))/SPECIAL NEEDS (JUSTICE CENTER FOR THE PROTECTION OF PERSONS WITH SPECIAL NEEDS, SOCIAL SERVICES LAW, NEGLECT ALLEGATION AGAINST NURSING HOME FOR SYSTEMIC FAILURE PROPERLY FOUND TO BE SUBSTANTIATED, EVEN THOUGH THE RELATED ALLEGATIONS AGAINST TWO EMPLOYEES WERE DEEMED TO BE UNSUBSTANTIATED (CT APP))/JUSTICE CENTER FOR THE PROTECTION OF PERSONS WITH SPECIAL NEEDS, SOCIAL SERVICES LAW, NEGLECT ALLEGATION AGAINST NURSING HOME FOR SYSTEMIC FAILURE PROPERLY FOUND TO BE SUBSTANTIATED, EVEN THOUGH THE RELATED ALLEGATIONS AGAINST TWO EMPLOYEES WERE DEEMED TO BE UNSUBSTANTIATED (CT APP))/NURSING HOMES (SOCIAL SERVICES LAW, NEGLECT ALLEGATION AGAINST NURSING HOME FOR SYSTEMIC FAILURE PROPERLY FOUND TO BE SUBSTANTIATED, EVEN THOUGH THE RELATED ALLEGATIONS AGAINST TWO EMPLOYEES WERE DEEMED TO BE UNSUBSTANTIATED (CT APP))/NEGLECT (SOCIAL SERVICES LAW, NEGLECT ALLEGATION AGAINST NURSING HOME FOR SYSTEMIC FAILURE PROPERLY FOUND TO BE SUBSTANTIATED, EVEN THOUGH THE RELATED ALLEGATIONS AGAINST TWO EMPLOYEES WERE DEEMED TO BE UNSUBSTANTIATED (CT APP))/SUPERVISION (NURSING HOMES, SOCIAL SERVICES LAW, NEGLECT ALLEGATION AGAINST NURSING HOME FOR SYSTEMIC FAILURE PROPERLY FOUND TO BE SUBSTANTIATED, EVEN THOUGH THE RELATED ALLEGATIONS AGAINST TWO EMPLOYEES WERE DEEMED TO BE UNSUBSTANTIATED (CT APP))

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OFFICE OF THE MEDICAID INSPECTOR GENERAL (OMIG) WAS ENTITLED TO THE FULL AMOUNT OF OVERPAYMENT MADE BY MEDICAID TO A METHADONE CLINIC, DESPITE THE INCLUSION OF A LOWER SETTLEMENT AMOUNT IN TWO NOTICES (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, reversing the Appellate Division, determined that the Office of the Medicaid Inspector General (OMIG) had properly notified the operator of a methadone clinic of the amount of overpayment by Medicaid that the OMIG was seeking. The OMIG had notified the clinic it was seeking about 1.8 million but was willing to settle for about 1.4 million. The clinic did not take any of the administrative steps or appeals that were available to it and did not agree to settle. The clinic argued that because two notices included only the 1.4 million settlement amount, the lower amount was owed. The Court of Appeals rejected that argument:

The pertinent regulations provide that, if an audit report is challenged, “[a]n extrapolation based upon an audit utilizing a statistical sampling method certified as valid will be presumed, in the absence of expert testimony and evidence to the contrary, to be an accurate determination of the total overpayments made or the penalty to be imposed” … . By contrast, the $1,460,914 figure, as explained in … the cover letter, merely represented, with 95% accuracy, a lower bound on the true amount overpaid. The [final audit report] and cover letter sufficiently notified [the clinic] … of OMIG’s $1,857,401 overpayment assessment which OMIG would be entitled to withhold … . West Midtown Mgt. Group, Inc. v State of New York, 2018 NY Slip Op 04666, CtApp 6-26-18

​MEDICAID (OFFICE OF THE MEDICAID INSPECTOR GENERAL (OMIG) WAS ENTITLED TO THE FULL AMOUNT OF OVERPAYMENT MADE BY MEDICAID TO A METHADONE CLINIC, DESPITE THE INCLUSION OF A LOWER SETTLEMENT AMOUNT IN TWO NOTICES (CT APP))/ADMINISTRATIVE LAW (MEDICAID, OFFICE OF THE MEDICAID INSPECTOR GENERAL (OMIG) WAS ENTITLED TO THE FULL AMOUNT OF OVERPAYMENT MADE BY MEDICAID TO A METHADONE CLINIC, DESPITE THE INCLUSION OF A LOWER SETTLEMENT AMOUNT IN TWO NOTICES (CT APP))

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NASSAU COUNTY PROPERLY DETERMINED A POLICE OFFICER WAS NOT ENTITLED TO INDEMNIFICATION FOR CIVIL DAMAGES STEMMING FROM A LAWSUIT BY AN ARRESTEE ALLOWED TO REMAIN IN JAIL AFTER THE OFFICER KNEW HE COULD NOT HAVE COMMITTED THE CRIME (CT APP)

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined that Nassau County did not act arbitrarily and capriciously when it decided petitioner police officer was not entitled to indemnification for civil damages stemming from a law suit by an arrestee (Crews) who was allowed to remain incarcerated despite the police officer’s knowledge Crews could not have committed the offense:

General Municipal Law § 50-l, the statute at issue here, authorizes Nassau County to defend and indemnify police officers named as defendants in civil actions or proceedings, providing indemnification from “any judgment . . . for damages, including punitive or exemplary damages, arising out of a negligent act or other tort of such police officer committed while in the proper discharge of [the officer’s] duties and within the scope of [the officer’s] employment” … . The statute declares that “[s]uch proper discharge and scope shall be determined by a majority vote of a panel . . . appointed by” various Nassau County officials — respondent Indemnification Board. The legislature, thus, left the determination of whether the statutory prerequisites are met to the discretion of the Board.

In this case, we are essentially asked to determine the meaning of the word “proper” in the phrase: “proper discharge of [the officer’s] duties.” Petitioner argues that the phrases “proper discharge of [ ] duties” and “scope of [ ] employment” are interchangeable in this statute, requiring only that the officer be engaged in police work to be entitled to indemnification. However, such an interpretation reads the word “proper” out of the statute. The legislature’s inclusion of this modifier indicates an intent to hold officers to a higher standard than mere performance of duty. Read literally, the statute permits the Board to consider the propriety of the officer’s actions in determining whether defense and indemnification is appropriate, as it did here when it revisited its determination after learning petitioner concealed information that extended the pretrial detention of an innocent person. Matter of Lemma v Nassau County Police Officer Indem. Bd., 2018 NY Slip Op 04382, CtApp 6-14-18

MUNICIPAL LAW (POLICE OFFICERS, NASSAU COUNTY PROPERLY DETERMINED A POLICE OFFICER WAS NOT ENTITLED TO INDEMNIFICATION FOR CIVIL DAMAGES STEMMING FROM A LAWSUIT BY AN ARRESTEE ALLOWED TO REMAIN IN JAIL AFTER THE OFFICER KNEW HE COULD NOT HAVE COMMITTED THE CRIME (CT APP))/ADMINISTRATIVE LAW (MUNICIPAL LAW, POLICE OFFICERS, NASSAU COUNTY PROPERLY DETERMINED A POLICE OFFICER WAS NOT ENTITLED TO INDEMNIFICATION FOR CIVIL DAMAGES STEMMING FROM A LAWSUIT BY AN ARRESTEE ALLOWED TO REMAIN IN JAIL AFTER THE OFFICER KNEW HE COULD NOT HAVE COMMITTED THE CRIME (CT APP))/POLICE OFFICERS (MUNICIPAL LAW, INDEMNIFICATION, NASSAU COUNTY PROPERLY DETERMINED A POLICE OFFICER WAS NOT ENTITLED TO INDEMNIFICATION FOR CIVIL DAMAGES STEMMING FROM A LAWSUIT BY AN ARRESTEE ALLOWED TO REMAIN IN JAIL AFTER THE OFFICER KNEW HE COULD NOT HAVE COMMITTED THE CRIME (CT APP))/INDEMNIFICATION (CIVIL DAMAGES, MUNICIPAL LAW, POLICE OFFICERS, NASSAU COUNTY PROPERLY DETERMINED A POLICE OFFICER WAS NOT ENTITLED TO INDEMNIFICATION FOR CIVIL DAMAGES STEMMING FROM A LAWSUIT BY AN ARRESTEE ALLOWED TO REMAIN IN JAIL AFTER THE OFFICER KNEW HE COULD NOT HAVE COMMITTED THE CRIME (CT APP))/POLICE OFFICERS  (CIVIL DAMAGES, MUNICIPAL LAW, POLICE OFFICERS, NASSAU COUNTY PROPERLY DETERMINED A POLICE OFFICER WAS NOT ENTITLED TO INDEMNIFICATION FOR CIVIL DAMAGES STEMMING FROM A LAWSUIT BY AN ARRESTEE ALLOWED TO REMAIN IN JAIL AFTER THE OFFICER KNEW HE COULD NOT HAVE COMMITTED THE CRIME (CT APP))

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TENANT’S HUSBAND HAD MOVED TO A NURSING HOME, DIVISION OF HOUSING AND COMMUNITY RENEWAL PROPERLY ONLY COUNTED TENANT’S PORTION OF THE COUPLE’S INCOME TO FIND HER ELIGIBLE FOR RENT CONTROL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over an extensive dissenting opinion, determined the Division of Housing and Community Renewal (DHCR) properly counted only the resident’s income, and not her husband’s income, for purposes of her eligibility for rent control. Her husband had moved to a nursing home:

Petitioner’s main contention is that because, under federal tax law, a joint tax return results in joint tax liability attributable to both filers … , under the RCL [rent control law], tenant’s federal AGI [adjusted gross income] cannot be apportioned and therefore her total annual income exceeds the income threshold. Petitioner offers no sound explanation why federal income tax liability should be outcome determinative of how DHCR interprets and applies the RCL. …

To be sure, RCL … characterizes annual income as the federal AGI. The statute also provides that total annual income is calculated as the “sum” of the annual incomes of all those “who occupy the housing accommodation as their primary residence” … . To read the statute as petitioner and the dissent suggest would mean that total annual income may include those persons who do not occupy the housing accommodation as their primary residence. “Such a construction, resulting in the nullification of one part of the [statute] by another,’ is impermissible, and violates the rule that all parts of a statute are to be harmonized with each other” … . Matter of Brookford, LLC v New York State Div. of Hous. & Community Renewal, 2018 NY Slip Op 04381, CtApp 6-14-18

LANDLORD-TENANT (TENANT’S HUSBAND HAD MOVED TO A NURSING HOME, DIVISION OF HOUSING AND COMMUNITY RENEWAL PROPERLY ONLY COUNTED TENANT’S PORTION OF THE COUPLE’S INCOME TO FIND HER ELIGIBLE FOR RENT CONTROL (CT APP))/ADMINISTRATIVE LAW (RENT CONTROL, TENANT’S HUSBAND HAD MOVED TO A NURSING HOME, DIVISION OF HOUSING AND COMMUNITY RENEWAL PROPERLY ONLY COUNTED TENANT’S PORTION OF THE COUPLE’S INCOME TO FIND HER ELIGIBLE FOR RENT CONTROL (CT APP))/RENT CONTROL (TENANT’S HUSBAND HAD MOVED TO A NURSING HOME, DIVISION OF HOUSING AND COMMUNITY RENEWAL PROPERLY ONLY COUNTED TENANT’S PORTION OF THE COUPLE’S INCOME TO FIND HER ELIGIBLE FOR RENT CONTROL (CT APP))/DIVISION OF HOUSING AND COMMUNITY RENEWAL (TENANT’S HUSBAND HAD MOVED TO A NURSING HOME, DIVISION OF HOUSING AND COMMUNITY RENEWAL PROPERLY ONLY COUNTED TENANT’S PORTION OF THE COUPLE’S INCOME TO FIND HER ELIGIBLE FOR RENT CONTROL (CT APP))

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ADMINISTRATIVE LAW JUDGE’S MARKING AN ADMINISTRATION OF CHILDREN’S SERVICES REPORT AS ‘INDICATED’ FOR MALTREATMENT OF PETITIONER’S CHILD HAD A RATIONAL BASIS AND SHOULD STAND, APPELLATE DIVISION REVERSED (CT APP).

The Court of Appeals, reversing the Appellate Division, over an extensive dissenting opinion, determined that the administrative law judge’s (ALJ’s) marking a NYC Administration for Children’s Services (ACS) report as “indicated” for maltreatment of petitioner’s (Natasha’s) child had a rational basis. Natasha had used her five-year-old child as a pawn in a shoplifting scheme. Natasha had an unblemished record and was pursuing a degree in early childhood education. The “indicated” designation will probably make it impossible for Natasha to find work in the childhood education field:

… [I]t was rational for the Administrative Law Judge to have concluded that the child was placed in imminent risk of impairment, constituting maltreatment … , and that petitioner’s actions are reasonably related to employment in the childcare field… ). The act in question — specifically, using the child as a pawn in a shoplifting scheme — “was sufficiently egregious so as to create an imminent risk of physical, mental[,] and emotional harm to the child” … . There is imminent potential for physical confrontation during a theft from a department store monitored by security. Moreover, … under the circumstances presented here, “utilizing a child to commit a crime and teaching a child that such behavior is acceptable must have an immediate impact on that child’s emotional and mental well-being,” particularly where, as here, the child is “young [and] just learning to differentiate between right and wrong” … . Likewise, the Administrative Law Judge rationally concluded that petitioner’s actions are reasonably related to employment in the childcare field “[a]s a matter of common sense” … . Matter of Natasha W. v New York State Off. of Children & Family Servs., 2018 NY Slip Op 04379, CtApp 6-14-18

FAMILY LAW (CHILD MALTREATMENT, ADMINISTRATIVE LAW JUDGE’S MARKING AN ADMINISTRATION OF CHILDREN’S SERVICES REPORT AS ‘INDICATED’ FOR MALTREATMENT OF PETITIONER’S CHILD HAD A RATIONAL BASIS AND SHOULD STAND, APPELLATE DIVISION REVERSED (CT APP))/ADMINISTRATIVE LAW (FAMILY LAW, CHILD MALTREATMENT,  ADMINISTRATIVE LAW JUDGE’S MARKING AN ADMINISTRATION OF CHILDREN’S SERVICES REPORT AS ‘INDICATED’ FOR MALTREATMENT OF PETITIONER’S CHILD HAD A RATIONAL BASIS AND SHOULD STAND, APPELLATE DIVISION REVERSED (CT APP))/ADMINISTRATION OF CHILDREN’S SERVICES ( ADMINISTRATIVE LAW JUDGE’S MARKING AN ADMINISTRATION OF CHILDREN’S SERVICES REPORT AS ‘INDICATED’ FOR MALTREATMENT OF PETITIONER’S CHILD HAD A RATIONAL BASIS AND SHOULD STAND, APPELLATE DIVISION REVERSED (CT APP))/MALTREATMENT (FAMILY LAW, CHILDREN, ADMINISTRATIVE LAW JUDGE’S MARKING AN ADMINISTRATION OF CHILDREN’S SERVICES REPORT AS ‘INDICATED’ FOR MALTREATMENT OF PETITIONER’S CHILD HAD A RATIONAL BASIS AND SHOULD STAND, APPELLATE DIVISION REVERSED (CT APP))

COMMISSIONER OF HEALTH’S DENIAL OF AN APPLICATION TO THE NYS MEDICAL INDEMNITY FUND FOR $12,000 TO PAY FOR A LIFT FOR A DISABLED CHILD WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT).

The Third Department determined the Commissioner of Health’s denial of petitioner’s application to the NYS Medical Indemnity Fund for about $12,000 for a lift which would allow a disabled child to use a pool was arbitrary and capricious:

… [T]he Commissioner determined that the pool lift did not qualify, reasoning that “[a] pool is not deemed an exterior modification of a residence because it is typically outside the confines of the [home].” This reasoning mischaracterizes the proposal. By definition, Emods [environmental home modifications] include exterior physical adaptations to a residence, including ramps. As demonstrated in the home evaluation, the backyard deck is attached to and directly accessed from the house through two back doors … . We readily recognize the attached deck as part of the residence, and the proposed modification here is to install two deck sockets that extend below the deck, i.e., the physical modification would be to the deck, not the pool. The pool lift is not directly attached to either the deck or the pool, but positioned in either socket depending on the intended use of either the pool or hot tub. As such, we find that the pool lift qualifies as an Emod and that the Commissioner’s contrary finding was arbitrary and capricious. Matter of Anson v Zucker, 2018 NY Slip Op 04063, Third Dept 6-7-18

​ADMINISTRATIVE LAW (COMMISSIONER OF HEALTH’S DENIAL OF AN APPLICATION TO THE NYS MEDICAL INDEMNITY FUND FOR $12,000 TO PAY FOR A LIFT FOR A DISABLED CHILD WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT))/NYS MEDICAL INDEMNITY FUND (COMMISSIONER OF HEALTH’S DENIAL OF AN APPLICATION TO THE NYS MEDICAL INDEMNITY FUND FOR $12,000 TO PAY FOR A LIFT FOR A DISABLED CHILD WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT))/ENVIRONMENTAL HOME MODIFICATIONS (COMMISSIONER OF HEALTH’S DENIAL OF AN APPLICATION TO THE NYS MEDICAL INDEMNITY FUND FOR $12,000 TO PAY FOR A LIFT FOR A DISABLED CHILD WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT))/DISABLED PERSONS (ENVIRONMENTAL HOME MODIFICATIONS, COMMISSIONER OF HEALTH’S DENIAL OF AN APPLICATION TO THE NYS MEDICAL INDEMNITY FUND FOR $12,000 TO PAY FOR A LIFT FOR A DISABLED CHILD WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT))

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THE TOLLING PROVISION OF CPLR 205 APPLIES TO AN ARTICLE 78 PROCEEDING SEEKING REVIEW OF AN ADMINISTRATIVE RULING, THE PETITION, WHICH WAS MARKED OFF THE CALENDAR BUT WAS NOT DISMISSED ON THE MERITS, CAN BE RE-FILED WITHIN SIX MONTHS OF THE DISMISSAL (SECOND DEPT).

The Second Department determined the tolling provision in CPLR 205 which allows an action which was dismissed (but not on the merits) to be started again within six months applies to Article 78 actions seeking review of an administrative ruling, here a ruling by the NYS Liquor Authority:

As the petitioner correctly contends, CPLR 205(a) applies not only to actions but also to special proceedings under CPLR article 78 … . The toll of CPLR 205(a) would not apply, however, if the prior proceeding was dismissed on the merits; thus, the court must determine whether the order dismissing the prior proceeding is entitled to res judicata effect … .

Here, the prior proceeding was dismissed after being marked off the calendar. Contrary to the Authority’s contention, “[a] dismissal of an action by being marked off the Trial Calendar is not a dismissal on the merits,” and “[a] new action on the same theory is therefore not barred by the doctrine of res judicata”… . Moreover, there is nothing in the order denying the petitioner’s motion to restore the prior proceeding to the calendar which suggests that the prior proceeding was dismissed with prejudice … . Matter of Lindenwood Cut Rate Liquors, Ltd. v New York State Liq. Auth., 2018 NY Slip Op 03680, Second Dept 5-23-18

​ADMINISTRATIVE LAW (CIVIL PROCEDURE, THE TOLLING PROVISION OF CPLR 205 APPLIES TO AN ARTICLE 78 PROCEEDING SEEKING REVIEW OF AN ADMINISTRATIVE RULING, THE PETITION, WHICH WAS NOT DISMISSED ON THE MERITS, CAN BE RE-FILED WITHIN SIX MONTHS OF THE DISMISSAL (SECOND DEPT))/CIVIL PROCEDURE (ADMINISTRATIVE LAW, THE TOLLING PROVISION OF CPLR 205 APPLIES TO AN ARTICLE 78 PROCEEDING SEEKING REVIEW OF AN ADMINISTRATIVE RULING, THE PETITION, WHICH WAS NOT DISMISSED ON THE MERITS, CAN BE RE-FILED WITHIN SIX MONTHS OF THE DISMISSAL (SECOND DEPT))/CPLR 205 (ADMINISTRATIVE LAW, THE TOLLING PROVISION OF CPLR 205 APPLIES TO AN ARTICLE 78 PROCEEDING SEEKING REVIEW OF AN ADMINISTRATIVE RULING, THE PETITION, WHICH WAS NOT DISMISSED ON THE MERITS, CAN BE RE-FILED WITHIN SIX MONTHS OF THE DISMISSAL (SECOND DEPT))

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