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Family Court Erred in Allowing Court Appointed Special Advocates Access to Confidential Records and Proceedings

The Third Department, in a full-fledged opinion by Justice Spain, determined Family Court had improperly allowed Court Appointed Special Advocates (CASA) to have access to confidential records and proceedings concerning children who were in foster care.  The court first noted that CASA was not a party and therefore did not have the right or capacity to seek relief from the court.  After finding that the petitioner (Social Services) did not have the power to direct the foster parents not to speak with CASA volunteers, the Third Department held that Family Court had erred in allowing CASA access to certain confidential records and proceedings:

With regard to Family Court’s unqualified directive that a CASA volunteer be permitted to attend all family service plan review meetings, and requiring petitioner to provide notice thereof, we find that the court exceeded its authority.  Service plan reviews, which are aimed at ultimately achieving permanent discharge of children in foster care, require petitioner “to review progress made through implementation of the previous service plan, identify issues of concern and suggest modifications that impact on and inform the development of a new service plan for the case” (18 NYCRR 430.12 [c] [2] [i]; see 18 NYCRR 428.9).  The reviews will often entail in-depth sharing, discussion and consideration of confidential information, such as medical and mental health information of the children or parents and reports of abuse and maltreatment… . * * *

Family Court lacked the authority to direct petitioner to “provide [the] CASA [volunteer] with the names of individuals and agencies providing mental health services to the children” subject only to the “providers, using their own professional judgment,” determining “what if any information regarding the children may be shared with [the] CASA [volunteer].”  Mental Hygiene Law § 33.13 (c) prohibits the release of mental health records contained in foster care records except in limited circumstances, including “pursuant to an order of a court of record requiring disclosure upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality” (Mental Hygiene Law § 33.13 [c] [1]). The court here expressly declined to make such a finding, and petitioner is statutorily bound to keep such information confidential… .  Matter of Evan E…, 516055, 3rd Dept 12-26-13

 

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Burden Is on Defendant in SORA Reclassification Proceeding/Fact that Defendant Was Not Provided With All the Documents Reviewed by the Board Did Not Violate Due Process

In a SORA reclassification proceeding, the Third Department, over a dissent, determined the defendant was not deprived of due process by the SORA court’s denial of an adjournment for the purpose gathering all the documents reviewed by the Board of Examiners of Sex Offenders in making its updated recommendation.  The Third Department noted that, unlike in the initial SORA proceeding where the burden of proof is on the People, in a reclassification proceeding the burden is on the defendant:

Correction Law § 168-o (2) provides a sex offender who is required to register pursuant to SORA with the opportunity to periodically seek a downward modification of his or her risk level classification.  However, the burden falls upon the sex offender to establish by clear and convincing evidence that a modification is warranted (see Correction Law § 168-o [2]), and the trial court’s determination will not be disturbed absent an abuse of discretion… . * * *

We do not take issue with the argument that defendant was entitled to discovery of the materials in question.  However, all discovery is subject to certain limitations and the court has “considerable discretion to supervise the discovery process” … .  In our view, the question before us distills to whether County Court abused its discretion in refusing to adjourn the hearing in order for defendant to belatedly gain access to the requested documents. In this regard, County Court’s decision to deny defendant’s request must be evaluated with full consideration of the attendant circumstances before the court, including the timeliness thereof …, and we cannot agree that reversal is required based solely on the fact that defendant did not obtain the requested materials prior to the hearing. People v Lashway, 514859, 3rd Dept 12-26-13

 

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Administrative Decision Maker, Who Had Previously Ruled Against Petitioner/Employee in Disciplinary Proceedings, Should Have Been Disqualified from Reviewing Hearing Officer’s Recommendations Made in a Related Subsequent Proceeding

The Third Department, over a partial dissent, determined the mayor (Bertoni), who ruled against the petitioner/employee on disciplinary charges, should have been disqualified from reviewing the hearing officer’s recommendations made in a subsequent PERB hearing.  After noting petitioner could properly be punished for testifying falsely in the hearings, the Third Department explained:

Reversal is required … because Bertoni should have been disqualified from reviewing the Hearing Officer’s recommendations.  To be sure, an administrative decision maker is not deemed biased or disqualified merely on the basis that he or she reviewed a previous administrative determination and ruled against the same employee, or presided over a prior proceeding involving a similar defense or similar charges … .  However, where, as here, there is evidence indicating that the administrative decision maker may have prejudged the matter at issue, disqualification is required… . Botsford v Bertoni, 516709, 3rd Dept 12-26-13

 

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Planning Board’s Determination Subdivision Was Exempt from Conservation Measures Under “Grandfathering” Laws Upheld

The Third Department determined the town planning board’s approval of a final subdivision plan was proper.  The petitioners challenged the approval arguing, in part, that the town’s repeated renewal of grandfathering provisions (under which the subdivision plan was approved) was unlawful. Under the grandfathering provisions, the subdivision was deemed exempt from certain conservation measures. The Third Department disagreed:

“A town’s zoning determination is entitled to a strong presumption of validity; therefore, one who challenges such a determination bears a heavy burden of demonstrating, ‘beyond a reasonable doubt, that the determination was arbitrary and unreasonable or otherwise unlawful'” … .  While “[z]oning laws must be enacted in accordance with a comprehensive land use plan” … to establish compliance, “respondents need only show that the zoning amendment was adopted for ‘a legitimate governmental purpose'” and the amendment will not be considered arbitrary unless “‘there is no reasonable relation between the end sought to be achieved by the regulation and the means used to achieve that end'” … .  … As set forth in the comprehensive plan, the Town’s primary concerns included “ensuring the community remains a great place to live, work, and visit, attracting new industry and employment opportunities, and conserving the area’s natural resources and remaining open spaces.”  The adoption of the initial grandfathering provision clearly evidenced and furthered the Town’s interest in balancing conservation measures with community development and, particularly, the interests of property owners who had, at the time the comprehensive plan was adopted, invested substantial time and money in developing their property in accordance with previous land use laws and zoning requirements … .

Petitioners have not shown that, under the circumstances here, the challenged extensions … were inordinately lengthy as to render them “arbitrary and unreasonable or otherwise unlawful”… .  Matter of Birchwood Neighborhood Association v Planning Board of the Town of Colonie, 516284, 3rd Dept 12-19-13

 

Attorney Penalized for Making a Baseless Request for a Change of Venue

The Third Department upheld the Board’s determination that counsel should be penalized for making a baseless request for a change of venue (closer to the attorney’s office):

Workers’ Compensation Law § 114-a (3) (ii) provides that “[i]f the [B]oard . . . determines that the proceedings in respect of [a claim for compensation], including any appeals, have been instituted or continued without reasonable ground[,] . . . reasonable attorneys’ fees shall be assessed against an attorney . . . who has instituted or continued proceedings without reasonable grounds.”  We will not disturb the Board’s imposition of a penalty for a violation of that statute so long as the determination is supported by substantial evidence … .  The Board considers a request for change of venue, which is a procedural motion, to constitute a proceeding for purposes of the statute.  Counsel was previously warned that what she cited as a “Board Rule” was actually a provision of a private legal treatise, that it did not accurately reflect the law or Board policy on venue, and that any further change of venue request filed based on that reasoning and citation “will be deemed a proceeding instituted without reasonable grounds and subject to the imposition of penalties under” the statute. Matter of Banton…, 516574, 3rd Dept 12-19-13

 

It May Be an Abuse of Discretion for the Board to Refuse to Review an Untimely Application Raising a Jurisdictional Issue/Board May Be Barred from Reopening a Closed Claim More than Seven Years After the Accident

The Third Department determined the Workers’ Compensation Board should have considered the employer’s untimely application for review because the employer raised a jurisdictional issue. The court noted that the Board may barred from reopening closed claims after more than seven years have elapsed since the accident:

“The general rule is that lack of jurisdiction to render a judgment or determination may be asserted at any time . . .” … .  Accordingly, “[w]hile the Board enjoys broad discretion to reject a late application for review,” its refusal to consider an untimely challenge to its jurisdiction may constitute an abuse of discretion … .

While the Board generally retains continuing jurisdiction over workers’ compensation claims, it is barred from reopening a claim “that has been . . .  disposed of without an award after the parties in interest have been given due notice of hearing or hearings and opportunity to be heard and for which no determination was made on the merits, [where there has been] a lapse of seven years from the date of the accident” (Workers’ Compensation Law § 123;…). Workers’ Compensation Law § 123 accordingly acts to “prevent a brand new attempt to prove up a stale claim” …, and deprives the Board of “power and jurisdiction” over such an attempt (Workers’ Compensation Law § 123…).  Given the age of the claim here and the fact that it was marked closed in 1995, the employer plausibly argues that the Board lacked jurisdiction to reopen the present claim.  Matter of VanAusdle, v NYC Police Department, 515592, 3rd Dept 12-19-13

 

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No Constitutional Issue Raised by Claim that County Is Paying Too High a “Mobility Tax” Because It Does Not Receive as Much Transit Service as Other Counties Paying the Same Amount

The Third Department affirmed the dismissal of two causes of action brought by a county challenging a “mobility tax” imposed upon counties served by the Metropolitan Transportation Authority (MTA).  The county alleged the mobility tax was disproportionately high because it did not receive as much service as other counties paying the same amount:

The gravamen of both claims is that the funding provided to the MTA by the County is disproportionately high when compared to the transit services received by it in return.  The MTA undoubtedly provides services to the County and its residents, however, and “[e]ven a ‘flagrant unevenness’ in application” of the financing scheme used to fund the MTA is constitutionally permissible … .

Without more, the fact that the County purportedly receives “fewer benefits from the [MTA] than those received by other[s] . . . is insufficient to warrant the relief requested” … .  Plaintiffs have not pointed to any constitutional or statutory provision that is violated by this alleged misallocation of resources and, as such, the sixth and seventh causes of action present nothing more than a nonjusticiable and impermissible attempt “to substitute judicial oversight for the discretionary management of public business by public officials” … .  Supreme Court thus acted properly in granting the MTA defendants’ motion for summary judgment.  Vanderhoff… v Silver, 516180, 3rd Dept 12-19-13

 

 

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Police Officer’s Actions In a Private Dispute Could Not Be Invoked Against Municipality Under Doctrine of Respondeat Superior

The Third Department determined that the doctrine of respondeat superior could not be invoked against a municipality for the actions of an off-duty police officer, even where the officer characterized his actions as an arrest.  Here the police officer injured the plaintiff in a private dispute that had nothing to do with the officer’s official duties:

“The doctrine of respondeat superior renders an employer vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment” … .  Thus, “where an employee’s actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment” … .  Notably, and as is relevant to the matter before us, “[a] municipality cannot be held vicariously liable for acts perpetrated by a member of its police force in the course of engaging in a personal dispute, without any genuine official purpose, whether or not the police officer characterizes such conduct as an arrest or incident to an arrest” … . Stevens v Kellar, 516875, 3rd Dept 12-19-13

 

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Department of Health’s Reduction of Medicaid Reimbursement to Nursing Homes Upheld

The Third Department, in a highly technical decision applying the legislature’s mathematical analyses and formulas for the determination of Medicaid reimbursement rates for two nursing homes, determined Supreme Court had erred in annulling the Department of Health’s reduction in reimbursement:

…[W]e agree that the Department was authorized by these laws to reduce both the initial and the final trend factor by one percentage point.  * * * Where, as here, “the statutory language is special or technical and does not consist of common words of clear import, courts will generally defer to the agency’s interpretative expertise unless that interpretation is unreasonable, irrational or contrary to the clear wording of the statute” … .  Additionally, as the law at issue is susceptible to different interpretations, the Department’s past practice is given great weight in determining the law’s meaning … .  Here, the record confirms that the Department has previously amended both the initial and the final CPI pursuant to legislative directives containing the phrase “trend factor projection” … .  We are therefore persuaded that the Department’s interpretation of this law is in accord with its historical practice … .  Moreover, we note that such an interpretation effectuates the Legislature’s intent to achieve cost savings in the Medicaid program… . Matter of Avenue Nursing Home and Rehabilitation Centre…, 516272, 3rd Dept 12-19-13

 

 

Family Court Did Not Adequately Consider the Factors Relevant to Mother’s Request for Unsupervised Visitation/Determination of Visitation Improperly Delegated to Father

The Third Department determined Family Court did not adequately consider mother’s request for unsupervised visitation with her children and improperly delegated the court’s authority to determine visitation to the father:

…Both the children and the noncustodial parent have a right to meaningful visitation … .  “[I]n providing for visitation that will be meaningful, the frequency, regularity and quality of the visits must be considered [and] [e]xpanded visitation is generally favorable absent proof that such visitation is inimical to a child’s welfare” … .  While Family Court’s best interests determination in visitation matters is ordinarily accorded great deference …, the court’s consideration of numerous important factors is not apparent here.  These include the children’s ages, needs and wishes; the mother’s progress with substance abuse treatment; the availability of adding supervised time or of additional supervisors of visitation, including family members; the passage of a great length of time with only highly restricted and limited supervised visits (since May 2011, at least); the fact that the visitation facility did not allow the children’s siblings (i.e., the mother’s infant born in June 2011 and adult daughter) or maternal family to attend; the father allowed only two unsupervised visits; the possibility of attaching conditions to unsupervised visitation; and the fact that the mother had been assessed as not posing a risk to herself or others in her treatment.  The foregoing factors, among others, represent a change in circumstances requiring, at the least, a reassessment of the existing visitation restrictions; … .

Moreover, Family Court erred in “delegat[ing] its authority to determine visitation to . . . a parent”… . Matter of Fish v Fish, 514662, 3rd Dept 12-19-13

 

 

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