Roberts v. N.Y. State Justice Ctr. for the Prot. of People With Special Needs

• Decision Date: 20 July 2017
• Docket Number: 524073.
• Parties: In the Matter of Malina C. ROBERTS, Petitioner, v. NEW YORK STATE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS et al., Respondents.
• Court: New York Supreme Court — Appellate Division

152 A.D.3d 1021

59 N.Y.S.3d 554

In the Matter of Malina C. ROBERTS, Petitioner,

v.NEW YORK STATE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS et al., Respondents.

524073.

Supreme Court, Appellate Division, Third Department, New York.

July 20, 2017.

Daren J. Rylewicz, Civil Service Employees Association, Inc., Albany (Eric E. Wilke of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), for respondents.

Before: McCARTHY, J.P., EGAN JR., LYNCH, ROSE and MULVEY, JJ.

EGAN JR., J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Justice Center for the Protection of People with Special Needs denying petitioner's request to amend and seal a report of abuse.

Petitioner is a direct support assistant employed by the Office for People with Developmental Disabilities (hereinafter OPWDD), and respondent Justice Center for the Protection of People with Special Needs (hereinafter the Justice Center) is the agency charged with, among other things, investigating and responding to allegations of abuse and neglect perpetrated against vulnerable individuals by those custodians who are charged with their care (see Social Services Law §§ 488, 492 ). At all times relevant, petitioner was working at the Brooklyn Developmental Center (hereinafter the facility) and was assigned to a unit housing individuals who suffer from both developmental disabilities and psychiatric disorders. One of the residents of that unit was a 28–year–old individual (hereinafter the service recipient) who had been diagnosed with bipolar disorder

and had a history of, among other things, physical and verbal aggression.

On the evening of August 5, 2013, a hotline report was received alleging that petitioner had kicked the service recipient several times while Doris Watson, a developmental aide employed at the facility, held the service recipient down on the ground. OPWDD undertook an investigation of the incident and, at the conclusion thereof, the assigned investigator found the report of physical abuse to be substantiated as to both petitioner and Watson. The Justice Center subsequently accepted the recommendation made by the investigator and, in January 2014, substantiated the report, finding that both petitioner and Watson had committed a category three offense within the meaning of Social Services Law § 493(4)(c). Petitioner's and Watson's separate requests for amendment of the report as unsubstantiated were denied, and the matters were referred for an administrative hearing.

Following a joint hearing, at which the OPWDD investigation report and supporting documentation were received into evidence and various witnesses appeared and testified, the Administrative Law Judge (hereinafter ALJ), among other things, recommended that petitioner's request to amend and seal the report be granted. Upon further review, however, the designee appointed by the Justice Center's Executive Director issued a final determination sustaining the category three findingof abuse and denied petitioner's request to amend and seal the substantiated report. Petitioner thereafter commenced this proceeding pursuant to CPLR article 78, subsequently transferred to this Court, to challenge the Justice Center's determination.¹

A detailed discussion of the underlying statutory scheme is set forth in this Court's prior decision in Matter of Anonymous v. Molik , 141 A.D.3d 162, 34 N.Y.S.3d 203 [2016], lv. granted 29 N.Y.3d 902, 2017 WL 1136969 (2017) and will not be repeated here. Pursuant to Social Services Law § 493(4), substantiated reports are divided into four categories—category one, two, three and four—"depending on the nature and severity of the conduct, and each [category] carries with it different consequences" (Matter of Anonymous v. Molik, 141 A.D.3d at 165, 34 N.Y.S.3d 203). Category one conduct pertains to "serious physical abuse, sexual abuse or other serious conduct caused by custodians" ( Social Services Law § 493[4][a] ), while category two conduct refers to conduct that "seriously endangers the health, safety or welfare of a service recipient by committing an act of abuse or neglect" ( Social Services Law § 493[4][b] ). Category three conduct, on the other hand, "encompasses all other acts of abuse or neglect that do not rise to the level of conduct as ‘described in categories one and two’ " ( Matter of Williams v. New York State Justice Ctr. for the Protection of People with Special Needs, 151 A.D.3d 1355, 57 N.Y.S.3d 238 [2017], quoting Social Services Law § 493[4][c] ). "Physical abuse" is defined as "conduct by a custodian intentionally or recklessly causing, by physical contact, physical injury or serious or protracted impairment of the physical, mental or emotional condition of a service recipient or causing the likelihood of such injury or impairment. Such conduct may include but shall not be limited to ... kicking ... or the use of corporal punishment" ( Social Services Law § 488[1][a] ).

Where, as here, "a report of abuse or neglect is substantiated by the Justice Center, the subject of the report has the right to request an amendment [there]of ... and, if the request is denied in whole or in part, to a hearing before an [ALJ] to determine whether the findings of the report should be amended. At [such] hearing, the Justice Center bears the burden of showing by a preponderance of the evidence that the subject committed the acts giving rise to the report and that the substantiated allegations constitute abuse or neglect" (Matter of Anonymous v. Molik, 141 A.D.3d at 166, 34 N.Y.S.3d 203 [internal quotation marks and citations omitted]; see Matter of Williams v. New York State Justice Ctr. for the Protection of People with Special Needs, 151 A.D.3d at 1357, 57 N.Y.S.3d 238 ). Upon review by this Court, "the Justice Center's...