Defendant's motion for an order dismissing each of the seven separate causes of action in this claim was granted.
|Claimant short name:||HEINLEIN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||RICHARD J. BRICKWEDDE, ESQ.|
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Christopher Wiles, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 17, 2010|
|See also (multicaptioned case)|
Defendant has brought this motion seeking an order dismissing the claim.
The following papers were considered by the Court in connection with this motion:
Notice of Motion; Attorney Affirmation, with Exhibit 1,2
Affirmation in Opposition, with Exhibits 3
Memorandum of Law in Opposition; Affidavit of Barbara Heinlein in Opposition 4,5
Claimant, the operator of a group family day care home in Holley, New York licensed by the State Office of Children and Family Services (OCFS), has brought this claim seeking damages based upon actions taken by OCFS Officials in first suspending, and later revoking, her license to operate her group family day care home.
As set forth in the papers before the Court, on June 15, 2007, claimant first became aware that her 16 year old son had engaged in acts of sexual abuse with a foster child in her home. The following morning claimant contacted the Orleans County Child Protective Services and the Holley Police Department to report this incident. Her son was arrested that day.
On or about June 26, 2007, OCFS was notified and an inspection of claimant's day care home was conducted that day. Additional inspections were conducted and on July 5, 2007, claimant's license was suspended by OCFS.
While claimant's license was suspended, additional unannounced inspections of claimant's home by OCFS personnel were conducted, and by amended notices issued on July 30, 2007 and August 2, 2007, OCFS advised claimant that a further determination had been made to revoke her group family day care license.
Claimant filed an administrative appeal, and in a March 2008 Decision, Richard E. Davidson, the Commissioner's designee, affirmed the determination to suspend and revoke her license (Exhibit 5 to Item 3).
Claimant then commenced an Article 78 proceeding, and in a Memorandum and Order entered March 27, 2009, the Appellate Division, Fourth Department, annulled the prior determination and granted claimant's petition (Exhibit 6 to Item 3). In its Memorandum and Order, the Appellate Division found that the administrative finding that claimant violated 18 NYCRR 416.15(a)(10) by refusing to admit an employee of OCFS into her home on one occasion, and also by threatening another employee of the agency on another occasion, was not supported by substantial evidence. The Appellate Division found that claimant's license, which had already been suspended at these times, prevented her from having any "hours of operation", and therefore her refusal was not in violation of the regulation. The Appellate Division also found that even if claimant had been found in violation of the regulation, the penalty of revocation under such circumstances was disproportionate to the offense and did not justify the revocation of her license.
This claim ensued, which was filed with the Clerk of the Court of Claims on February 25, 2010, and served upon the Attorney General on or about March 3, 2010. In this claim, claimant seeks damages on seven separate causes of action based upon the actions taken by State officials and employees involved in the proceedings detailed above. As set forth at the outset herein, defendant now moves to dismiss each and every cause of action asserted by claimant in this claim.
In a motion to dismiss pursuant to CPLR § 3211, the Court is required to "accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87). On this basis, the Court will therefore separately address the seven causes of action set forth in the claim.
1. Failure to train and supervise.
In her claim, claimant alleges that the State failed to properly train its OCFS employees in appropriate law and procedures, and that such lack of training led to the misinterpretation of the regulation governing proper inspections of claimant's facility.
For torts alleging negligence such as the failure to adequately train and supervise, Court of Claims Act §10 (3) requires that a claim be served and filed within 90 days of accrual of the cause of action, unless a notice of intention to file a claim is served within such time period. If a notice of intention is timely served, a claimant then has two years from accrual to serve and file a claim.
As set forth in the motion papers, a notice of intention to file a claim was served upon the Attorney General on May 8, 2009 (Exhibit 1 to Item 3). As previously stated herein, the claim was filed with the Clerk of the Court of Claims on February 25, 2010 and was served upon the Attorney General on March 3, 2010.
It is clearly evident that the complained of actions of the OCFS employees and inspectors occurred between June 2007 and August 2007, at the time that claimant's day care home was inspected, and at that time when claimant's license was first suspended and then revoked. Any allegations of negligent training and/or supervision had to necessarily predate these actions, and as a result this cause of action is clearly untimely under § 10 (3).
Although claimant argues that the time of accrual should run from the Decision of the Appellate Division, Fourth Department, to annul the suspension and revocation of claimant's day care license, the Court notes that there was no suggestion that negligent training or supervision was considered by the Appellate Division in arriving at its decision to annul. Claimant's contention, therefore, is without basis, and this cause of action must therefore be dismissed as untimely pursuant to § 10 (3).
2. Abuse of Process.
In order to establish a cause of action based upon abuse of process, a claimant must establish (1) that the defendant issued or caused to be issued a civil or criminal process that compelled claimant to perform, or to forbear from performing, some act; (2) that in activating the process, the defendant was motivated by a purpose to do harm, without excuse or justification; (3) that the defendant was seeking some collateral advantage to itself, or some corresponding detriment to claimant, outside the legitimate ends of the process, and (4) actual or special damages (Board of Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397).
In this case, claimant contends that OCFS personnel improperly invoked administrative powers to revoke her authority to operate her day care home, in retribution for her exercise of freedom of speech.
Again, claimant faces the same issue with respect to timeliness as with her first cause of action. This cause of action, considered an intentional tort, is governed by service and filing requirements delineated in Court of Claims Act § 10 (3-b). Pursuant to § 10 (3-b), a claim alleging an intentional tort must be served and filed within 90 days of accrual, unless a notice of intention is served within that time, in which case the claim must be served and filed within one year of accrual. In this case, the revocation process was instituted on July 31, 2007, when OCFS personnel served an amended notice to revoke claimant's day care license. The decision to revoke was administratively affirmed in March 2008, by Richard E. Davidson, Bureau of Special Hearings (Exhibit 5 to Item 3). At the latest, therefore, the cause of action for abuse of process accrued on that date, and this cause of action, set forth in the claim served and filed in 2010, is clearly untimely.
Furthermore, since the suspension and revocation process was commenced after claimant had admitted sexual abuse misconduct on the part of her son at her premises, claimant cannot satisfy the element of an abuse of process claim that the process was motivated by a purpose to do harm without any excuse or justification.
3. Prima Facie Tort.
The requisite elements to establish a cause of action sounding in prima facie tort are: (1) the intentional infliction of harm, (2) resulting in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful (Curiano v Suozzi, 63 NY2d 113). The actions taken by the defendant "must be motivated solely by malevolence" with no other goal or intention (Cavanaugh v Doherty, 243 AD2d 92, 101).
With regard to this cause of action, claimant contends that Commissioner's designee Davidson, as the supervisor of the Administrative Law Judge (ALJ) who conducted the administrative hearing, exceeded his authority by directing the ALJ to delete or modify certain findings of fact set forth in the her recommended decision (Exhibits 2-5 to Item 3). Claimant contends that Davidson's actions violated certain regulations governing administrative proceedings, specifically 9 NYCRR § 4.131 (II)(E), which provides that an agency may not order or direct a hearing officer to make any specific findings of fact, conclusions of law, or any specific dispositions of charges or allegations. The regulation, does, however, authorize a supervisor to provide the ALJ with legal advice and guidance in order to assure consistent or legally sounded decisions.
The Affirmations of Richard E. Davidson and ALJ Mary P. Walek (Exhibits 3and 4 to Item 3) not only have directly contravened claimant's allegations, but claimant has failed to allege or even suggest that the actions taken by Commissioner's designee Davidson were intended to inflict harm or were taken without excuse or justification. Simply stated, claimant has failed to allege a viable cause of action for prima facie tort.
4. Failure to Publish.
In this cause of action, claimant alleges that OCFS failed to properly publish and index its administrative decisions as required by State Administrative Procedures Act § 307 (3). By failing to do so, claimant contends that OCFS prevented claimant (and others) from challenging the agency's interpretations of its own regulations, and also failed to provide its inspectors with proper guidance in their actions.
An agency's failure to publish and index its administrative decisions, however, does not constitute a cognizable cause of action in the Court of Claims which, as a court of limited jurisdiction, is authorized to award judgments of money damages only.
5. Unconscionable Delay in Issuing a Decision.
In this cause of action, claimant alleges that the defendant failed to arrive at a timely disposition after OCFS initially suspended claimant's day care license.
Again, there is no such cognizable cause of action in the Court of Claims for unconscionable delay, as claimant's appropriate relief would be in the nature of an Article 78 proceeding.
This cause of action is based upon the inspections of claimant's day care home which were conducted by OCFS inspectors between June 26, 2007 and August 20, 2007. Such actions occurred well before the service of claimant's notice of intention, which was served in May 2009, and this cause of action is clearly untimely under either Court of Claims Act § 10 (3) or § 10 (3-b).
7. Due Process Right to a Fair Adjudication.
In this cause of action, claimant alleges that her due process right under the State Constitution to a fair adjudication of her administrative hearing was violated when Commissioner's Designee Davidson interfered with the initial recommended decision made by ALJ Walek.
State Constitutional tort claims have been recognized in this Court in limited circumstances, in situations when the substantive right is firmly established, the Constitutional tort remedy is necessary to assure the effectiveness of the underlying Constitutional provision, and the claimant has no common law or statutory remedy available (Brown v State of New York, 89 NY2d 172). The Constitutional tort remedy, however, is only recognized under a narrow set of circumstances (Augat v State of New York, 244 AD2d 835, lv denied 91 NY2d 814), and only when a claimant has no common law or statutory remedy available (Remley v State of New York, 174 Misc 2d 523).
In this claim, in addition to all of the other tort causes of action asserted in her claim, claimant also had available the statutory remedy of an Article 78 proceeding to contest the administrative actions which had been taken against her. Obviously, claimant availed herself of this alternative remedy, and was successful in doing so. In as much as claimant had an alternative remedy, and was successful in pursuing such remedy, her cause of action alleging a State Constitutional tort must be dismissed.
In fact, although claimant has creatively set forth seven separate tort causes of action in her claim, she essentially is attempting to seek money damages based upon the decision of the Appellate Division which annulled the administrative revocation of her day care license. The Court of Claims, however, as a statutory Court, only has jurisdiction expressly conferred upon it by the Legislature, and this jurisdiction does not extend to claims seeking damages incidental to equitable relief (Matter of Gross v Perales, 72 NY2d 231; Madura v State of New York, 12 AD3d 759, lv denied 4 NY3d 704). Notwithstanding the characterization of the seven separate causes of action set forth in her claim, the monetary relief sought by claimant is obviously directly dependent upon the finding by the Appellate Division that the revocation of her day care license by OCFS was not warranted. As a result, this Court does not have subject matter jurisdiction over the claim (Madura v State of New York, supra; Hoffman v State of New York, 42 AD3d 641).
Based on the foregoing, therefore, it is
ORDERED, that Motion No. M-78164 is hereby GRANTED; and it is further
ORDERED, that Claim No. 118066 is hereby DISMISSED in its entirety.
November 17, 2010
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims