Administrative Law – Page 8 – New York Appellate Digest

PETITIONER DEMONSTRATED THE CHILD WAS NEVER HARMED AND SHE HAD MADE SERIOUS AND SUCCESSFUL EFFORTS AT REHABILITATION; RE: PETITIONER’S EMPLOYMENT IN THE CHILDCARE FIELD, RESPONDENT NYS OFFICE OF CHILDEN AND FAMILY SERVICES IS PRECLUDED FROM INFORMING ANY PROVIDER OR LICENSING AGENCY THAT PETITIONER IS THE SUBJECT OF A CHILD MALTREATMENT REPORT (FOURTH DEPT).

The Fourth Department, in an Article 78 proceeding transferred by Supreme Court, determined the respondent NYS Office of Children and Family Services should not have ruled that “petitioner’s acts of child maltreatment are relevant and reasonably related to employment in the childcare field.” The Fourth Department therefore directed that respondent “shall be precluded from informing a provider or licensing agency which makes an inquiry that petitioner is the subject of an indicated child maltreatment report.” No child had ever been harmed by petitioner and petitioner demonstrated serious and successful rehabilitative efforts.

… [T]he record establishes that petitioner had taken actions to show that she “[is] able to deal positively with [the] situation or problem that gave rise to the previous incident(s) of child . . . maltreatment” … . As petitioner contends, the ALJ [Administrative Law Judge] failed to consider the evidence of psychological rehabilitation showing that she could deal positively with the trauma she suffered as a result of the domestic violence inflicted upon her by the father, which precipitated the indicated report. Petitioner’s marriage and family therapist submitted a letter explaining that petitioner had suffered from post-traumatic stress disorder “as a result of the relationship” with the father, but that petitioner “ha[d] made an enormous amount of progress and ha[d] reached her treatment goals,” and “in no way presented as an unfit parent” during the course of her treatment. The psychologist who performed a comprehensive evaluation and testing of petitioner opined that, despite having been “aggressively abused” by the father, there was no indication that petitioner harbored “resentments toward others,” petitioner showed “no defensiveness or tendency to distort the facts of the situation,” and petitioner scored “unusually low” on the potential for abuse scale, which demonstrated that petitioner had “none of the characteristics, personal status or problems with the child or family members that would raise the question of abusive potential on her part.” Petitioner also had a “significantly elevated score on the scale indicating . . . the tendency to maintain emotional stability and to adequately deal with interpersonal exchanges.” Moreover, the ALJ ignored petitioner’s testimony about her improved ability to deal positively with emotionally challenging situations and the letters from other individuals attesting to petitioner’s ability to properly parent the child. The record therefore indisputably establishes that petitioner is able to deal positively with the situation or problem that gave rise to the indicated report. Matter of Hastings v New York State Off. of Children & Family Servs., 2024 NY Slip Op 02436, Fourth Dept 5-3-24

Practice Point: A person who has been found to have committed acts of child maltreatment can petition the NYS Office of Children and Family Services for a ruling precluding the agency from informing any childcare provider of licensing agency of the maltreatment, thereby clearing the way for that person’s employment in the childcare field.

May 3, 2024

Administrative Law, Environmental Law

THE ADIRONDACK PARK AGENCY PROPERLY ISSUED PERMITS FOR THE APPLICATION OF AN HERBICIDE IN LAKE GEORGE TO CONTROL AN INVASIVE AQUATIC PLANT (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, reversing Supreme Court, determined the Adirondack Park Agency (APA) properly issued permits for the application of an herbicide (ProcellaCOR EC) in Lake George to control an invasive aquatic plant called Eurasian watermilfoil (EWM). Supreme Court had granted the Article 78 petition and vacated the permits. Applying black letter administrative law, the Third Department found no basis to overturn the APA’s ruling. The opinion is too fact-specific and detailed to fairly summarize here:

… [W]here an agency’s determination was rendered without a fact-finding hearing, a court’s review is limited to “whether [the] 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] …). In performing such review, “[i]t is well settled that a court cannot substitute its view of the factual merits of a controversy for that of the administrative agency” … . And, when “the judgment of the agency involves factual evaluations in the area of the agency’s expertise and is supported by the record, such judgment must be accorded great weight and judicial deference” … . Indeed, “[i]f a determination is rational it must be sustained even if the court concludes that another result would also have been rational” … .

Although an agency acts arbitrarily and capriciously when it fails to conform to its own regulations, an agency’s interpretation of its own regulations is entitled to deference if that interpretation does not contradict the plain language of the regulations and is not irrational or unreasonable … . Matter of Lake George Assn. v NYS Adirondack Park Agency, 2024 NY Slip Op 02356, Third Dept 5-2-24

Practice Point: Black letter administrative law for the review of an agency’s determination when there was no fact-finding hearing was applied here. The Adirondack Park Agency’s issuance of permits for the application of an herbicide in Lake George was upheld.

May 2, 2024

Administrative Law, Medicaid, Public Health Law

FOR-PROFIT NURSING HOMES’ CHALLENGE TO ADJUSTED MEDICAID REIMBURSEMENT RATES REJECTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing (modifying) the Appellate Division, rejected petitioner for-profit nursing homes’ challenges to the adjusted Medicaid reimbursement rates which were to be implemented as of April 1, 2020:

… [W]e reject petitioners’ challenges to adjusted Medicaid reimbursement rates issued to comply with amended Public Health Law (“PHL”) § 2808 (20) (d), which mandates the elimination of one component from the computation formula used to set rates of for-profit residential health care facilities, on or after April 1, 2020. The amendment and the adjusted rates do not result in a retroactive effect and petitioners failed to establish that the rates are not “reasonable and adequate to meet costs” under PHL § 2807 (3) or that the rates violate their equal protection rights. We hold that respondents may implement the recalculated rates for services provided as of April 2, 2020 … . * * *

Petitioners, 116 for-profit nursing homes, filed this hybrid declaratory judgment and article 78 proceeding against State respondents—the Department [of Health] and its Commissioner and the Director of the Budget—challenging the Department’s implementation of the recalculated rates without the residual equity reimbursement factor. Simultaneously, petitioners moved for a preliminary injunction to prevent respondents from enforcing the equity elimination clause. Supreme Court granted petitioners’ motion for a preliminary injunction against enforcement of the clause pending a final determination of the proceeding. Matter of Aaron Manor Rehabilitation & Nursing Ctr., LLC v Zucker, 2024 NY Slip Op 02126, CtApp 4-23-24

Practice Point: The procedures and criteria for challenges to Medicaid reimbursement rates for for-profit nursing homes explained in depth.

April 23, 2024

Administrative Law, Constitutional Law, Employment Law, Religion

THE UNIFIED COURT SYSTEM’S DENIAL OF COURT EMPLOYEES’ APPLICATIONS FOR RELIGIOUS EXEMPTIONS FROM THE COVID VACCINE MANDATE AFFIRMED (FIRST DEPT).

The First Department affirmed the NYS Unified Court System’s (UCS’s) denial applications for religious exemptions from the COVID vaccine mandate. The issue was analyzed under both the US and NYS Constitutions. The USC held the petitioners (USC employees) failed to meet the qualifications for employment by not complying with the mandate. The decision is too detailed to fairly summarize here, but is well worth reading for the constitutional analyses:

Conducting the appropriate level of review, we find that the vaccine mandate was rationally related to the legitimate goals of slowing the spread of COVID-19 and fully reopening courts to “promote efficient access to justice” … . Indeed, “[w]hatever their merits or efficacy, it cannot be said that the State’s policies are an irrational means to achieve the legitimate goal of curbing the spread of COVID-19” … . Matter of Ferrelli v State of New York, 2024 NY Slip Op 02012, First Dept 4-16-24

Practice Point: The NYS Unified Court System’s denial of employees’ applications for religious exemptions from the COVID vaccine mandate did not violate the US or NYS Constitutions.

April 16, 2024

Administrative Law, Evidence

THE REVOCATION OF PETITIONER’S MEDICAL LICENSE WAS CONFIRMED; TWO DISSENTERS ARGUED THERE WAS INSUFFICIENT EVIDENCE OF THE REQUIRED STANDARD OF CARE, ESPECIALLY AS THE STANDARD APPLIES TO TERMINALLY ILL PATIENTS WHO CONSENT TO AGGRESSIVE TREATMENT (THIRD DEPT).

The Third Department, over a two-justice dissent, confirmed the revocation of petitioner’s medical license by the New York State Board for Professional Medical Conduct. The dissenters argued the publications used by respondent’s expert to assess the quality of care provided by petitioner were advisory in nature and did not apply to the aggressive care petitioner offered to terminally ill patients:

From the dissent:

… [T]he findings of the Committee were premised entirely on the erroneous understanding of respondent’s expert, Isamettin Aral, that professional societies establish the accepted standard of care. The record reflects that, on cross-examination, petitioner’s counsel asked Aral the question, “what do you mean when you say standard of care?” In response, Aral testified, “[w]e have accepted guidelines that are published by multiple societies, they include our board, [the] American College of Radiology or [the] American Board of Radiology, [and] national comprehensive cancer networks and these are fairly descriptive, prescriptive guidelines for what a physician should do in the management of cases in very specific areas. When you deviate from those, it is considered to fall short of a standard.”

Although we acknowledge that petitioner pursued what appears to have been aggressive care with the goal of prolonging the lives of patients A-G and was in accordance with their wishes, the record lacks any reference to pervasive standards outlining physician obligations relative to the extraordinary circumstances of terminally ill patients with advanced, late-stage disease. As Aral’s testimony is unsupported by an evidentiary foundation and the Bureau of Professional Medical Conduct offered no other proof, we would find the Committee’s determination to be fatally flawed, fundamentally unfair and affected by an error of law. Matter of Yi v New York State Bd. for Professional Med. Conduct, 2024 NY Slip Op 01955, Third Dept 4-11-24

Practice Point: In an administrative proceeding which resulted in the revocation of petitioner’s medical license, two dissenter’s argued the evidence used by respondent’s expert to determine the required standard of care was only advisory in nature and therefore insufficient, especially as that standard was applied to the consensual aggressive treatment of terminally ill patients.

April 11, 2024

Administrative Law, Civil Procedure, Contract Law, Corporation Law, Municipal Law

THE ELECTRICAL-CONTRACTOR CORP WAS NOT LICENSED TO DO ELECTRICAL WORK IN NYC; THE FACT THAT THE CORPORATION’S VICE PRESIDENT WAS LICENSED AND THE VICE PRESIDENT’S COMPANY, WHICH DID THE ELECTRICAL WORK AS A SUBCONTRACTOR, WAS LICENSED DOESN’T MATTER; THE CORPORATION CAN NOT SUE FOR BREACH OF CONTRACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff electrical-contractor corporation could not sue for breach of contract because the corporation was not licensed in NYC to do electrical work, even though plaintiff’s vice president was licensed and the vice president’s company (QNCC) which did the work as plaintiff corporation’s subcontractor was licensed:

Administrative Code § 27-3017(a) states that it shall be unlawful for any person to, inter alia, perform electrical work in the City of New York unless that person is a licensed master electrician or special electrician. Licensing statutes are to be strictly construed … . …

The plaintiff’s contention that recovery should not be denied because QNCC was a duly licensed subcontractor which performed the electrical work is without merit. This Court has previously held that such a relationship is insufficient to permit an unlicensed contractor to recover for work performed in the City … . “‘So strict has been judicial construction of the statutory requirement through concern for the public health and welfare that the requirement may not be satisfied by employing or subletting’ the work to an appropriately licensed person” … . Moreover, that the plaintiff’s vice president had a master electrician’s license, and that the defendant’s architect knew that the electrical work permits were issued to an entity other than the plaintiff, does not bar the application of the above rule … . Electrical Contr. Solutions Corp. v Trump Vil. Section 4, Inc., 2024 NY Slip Op 01907, Second Dept 4-10-24

Practice Point: The NYC Administrative Code requirement that electrical work must be done by licensed entities or persons is strictly construed. Here the electrical-contractor corporation’s vice president was licensed and the vice president’s company which did the work as a subcontractor was licensed, but the corporation was not. The corporation could not sue for breach of contract.

April 10, 2024

Administrative Law, Civil Procedure, Landlord-Tenant, Municipal Law

THE THIRD DEPARTMENT DETERMINED THE NEW YORK STATE UNIFORM FIRE PREVENTION AND BUILDING CODE PROVIDES SUFFICIENT STANDARDS AND MECHANISMS FOR ENFORCEMENT OF THE CODE PROVISIONS; A TENANT WHOSE BUILDING WAS DECLARED UNSAFE AFTER ORDERS TO REMEDY DEFECTS WERE IGNORED BY THE LANDLORD BROUGHT A PETITION FOR A WRIT OF MANDAMUS TO COMPEL THE SECRETARY OF STATE TO STRENGTHEN CODE ENFORCEMENT STANDARDS AND MECHANISMS; THE PETITION WAS DENIED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McShan, over a two-justice dissent, determined that the regulations associated with the enforcement of the NYS Uniform Fire Prevention and Building Code (Uniform Code) are adequate. Petitioner, a former tenant in a building which was ultimately declared unsafe after several orders to remedy building-defects were ignored by the landlord, brought a petition for a writ of mandamus requiring the NYS Secretary of State to provide standards for the enforcement of the Uniform Code. The petition was dismissed after an exhaustive discussion of the relevant regulations and enforcement standards and mechanisms. The opinion is too detailed to fairly summarize here. Matter of Clements v New York Secretary of State, 2024 NY Slip Op 01756, Third Dept 3-28-24

March 28, 2024

Administrative Law, Appeals, Civil Procedure

THE DECLARATORY RULING BY THE PUBLIC SERVICE COMMISSION (PSC) WAS FINAL AND THEREFORE WAS A PROPER SUBJECT OF AN ARTICLE 78 PETITION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McShan, determined the ruling by the Public Service Commission (PSC) was ripe for an Article 78 review and, therefore, the PSC’s motion to dismiss the petition should not have been granted. The declaratory ruling by the PSC was final and could not be altered by he PSC:

“A declaratory ruling shall be binding upon the agency unless it is altered or set aside by a court” by virtue of a CPLR article 78 proceeding (State Administrative Procedure Act § 204 [1]). Particularly relevant here, State Administrative Procedure Act § 204 (1) does not permit an agency to “retroactively change a valid declaratory ruling,” only allowing such changes to apply “prospectively.” Thus, the explicit language of State Administrative Procedure Act § 204 did not allow the PSC to modify its initial ruling … . * * * … [T]he … declaratory ruling issued by the PSC is quasi-judicial in nature and, at the moment it was issued, was “accorded the [same] conclusiveness that attaches to judicial judgments,” thus rendering it ripe for review … . Matter of Clean Air Coalition of W. N.Y., Inc. v New York State Pub. Serv. Commission, 2024 NY Slip Op 01233, Third Dept 3-7-24

Practice Point: A declaratory ruling by the Public Service Commission (PSC) is final and cannot be altered by the Commission. Therefore the ruling is ripe for an Article 78 review by a court.

March 7, 2024

Administrative Law, Contract Law, Employment Law, Labor Law, Municipal Law

ALTHOUGH THE SPECIFIC CONTRACT WAS NOT IDENTIFIED IN THE COMPLAINT, THE NATURE OF THE BREACH OF CONTRACT CLAIM WAS SUFFICIENTLY ALLEGED BY REFERENCE TO THE NYC ADMINISTRATIVE CODE AND NYC DEPARTMENT OF TRANSPORTATION PERMITS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the breach of contract cause of action was sufficiently alleged. Although the complaint did not specifically identify the breached contract, the reference to the relevant provisions of the NYC Administrative Code and the NYC Department of Transportation (DOT) permits gave sufficient notice of the nature of the claim:

… [P]laintiffs alleged that Con Edison failed to ensure payment of prevailing wages by codefendant … as required by the permits issued by the City Department of Transportation (DOT), in that it breached agreements required to be made, pursuant to Administrative Code of City of NY § 19-142, prior to obtaining such permits. Administrative Code § 19-142 required Con Edison “to agree that . . . the prevailing scale of union wages shall be the prevailing wage for similar titles as established by the fiscal officer pursuant to section [220] of the labor law, paid to those so employed,” and provides that “[n]o permit shall be issued until such agreement shall have been entered into with the” DOT. As required by the Administrative Code, the DOT permits issued to Con Edison stated that the permittee was required, “before such permit may be issued, to agree . . . that the prevailing scale of union wages shall be the prevailing wage for similar titles” established pursuant to Labor Law § 220 … …

… [T]he fact that the breach of contract cause of action in the complaint does not specifically identify the relevant contract but instead refers to “the promises required to be made pursuant to New York City Administrative Code § 19-142 prior to obtaining such permits,” does not require dismissal. Despite the non-specificity, the complaint “give[s] sufficient notice of the nature of the claim” by referencing Administrative Code § 19-142 and the DOT permits … . Ross v No Parking Today, Inc., 2024 NY Slip Op 00880, First Dept 2-20-24

Practice Point: Here the failure to identify the specific contract which was breached did not require dismissal of the breach of contract cause of action because the nature of the action was sufficiently alleged by reference to the applicable NYC Administrative Code provision and NYC Department of Transportation permits.

February 20, 2024

Administrative Law, Attorneys, Human Rights Law, Landlord-Tenant

A LETTER FROM AN ATTORNEY THREATENING LITIGATION CAN CONSTITUTE “RETALIATION” AGAINST THOSE WHO MAKE HOUSING DICSRIMINATION COMPLAINTS PURSUANT TO THE HUMAN RIGHTS LAW (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, reversing the Appellate Division, determined a letter sent by an attorney for the landlord, Pine Ridge, to the respondent CityVision, a not-for-profit corporation which tests whether housing facilities engage in discrimination, constituted “retaliation” against those who make discrimination complaints. Here a CityVision employee, Renner, posed as a prospective tenant and allegedly was steered to a different apartment complex because she had children (discrimination based on familial status). CityVision’s complaint to the NYS Division of Human Rights (DHR) was dismissed. An attorney for Pine Ridge then sent a letter to CityVision which mentioned seeking damages. CityVision then filed a second complaint alleging the letter constituted “retaliation:” Although the matter was remitted to DHR because it was CityVision’s, not Pine Ridge;s, burden to show it was engaged in a protected activity, the Court of Appeals held that the threat of litigation can constitute “retaliation” in this context.

… [A] plaintiff bears the burden to establish a prima facie retaliation claim … . To meet that burden, the plaintiff must show that (1) they have “engaged in protected activity,” (2) the defendant “was aware that” the plaintiff “participated in” the protected activity, (3) the plaintiff suffered adverse action based upon the activity, and (4) “there is a causal connection between the protected activity and the adverse action” (id.). Only the first and third elements of CityVision’s retaliation claim are at issue here. ***

… [T]he record established that [the attorney’s] letter “shocked” CityVision’s employees and forced CityVision to expend resources and “scramble . . . to locate counsel” to address the threat. … [I]t was rational for DHR to conclude that the threatening letter caused CityVision to divert resources and could have dissuaded a person from pursuing a discrimination claim to protect their rights under the Human Rights Law. Indeed, a potential plaintiff might be chilled from filing a discrimination complaint when weighing the harm caused by the threat of retaliatory litigation, let alone the injury potentially occasioned by actual retaliatory litigation. DHR’s determination that the litigation threat amounted to adverse action in this case was rational and, thus, supported by substantial evidence. Matter of Clifton Park Apts., LLC v New York State Div. of Human Rights, 2024 NY Slip Op 00793, CtApp 2-15-24

Practice Point: Here a not-for-profit filed a complaint against a landlord alleging housing discrimination. After the complaint was dismissed, an attorney for the landlord sent a letter to the not-for-profit arguably threatening litigation. The letter constituted “retaliation” within the meaning of the Human Rights Law.

February 15, 2024