Opinion
4115-15
01-05-2016
In the Matter of the Application of Marchetta WILLIAMS, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules v. NEW YORK STATE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS, and Jeff Wise, in his capacity as Executive Director for the New York State Justice Center for the Protection of People with Special Needs, Respondents.
Steven A. Crain and Daren J. Rylewicz (By: Ellen M. Mitchell, Esq., of Counsel) Civil Service Employees Association, Inc., Attorneys for the Petitioner, P.O. Box 7125, Capitol Station, 143 Washington Avenue, Albany, New York 12224 Eric T. Schneiderman, Attorney General of the State of New York (By: Kate H. Nepveu, Assistant Attorney General, of Counsel) Attorney for Respondent, The Capitol, Albany, New York 12224-0341
Steven A. Crain and Daren J. Rylewicz (By: Ellen M. Mitchell, Esq., of Counsel) Civil Service Employees Association, Inc., Attorneys for the Petitioner, P.O. Box 7125, Capitol Station, 143 Washington Avenue, Albany, New York 12224
Eric T. Schneiderman, Attorney General of the State of New York (By: Kate H. Nepveu, Assistant Attorney General, of Counsel) Attorney for Respondent, The Capitol, Albany, New York 12224-0341
David A. Weinstein, J.
In this petition brought under CPLR Article 78, petitioner Marchetta Williams challenges a Final Determination issued by an administrative law judge ("ALJ") on April 14, 2015 following a hearing, in which the ALJ found by a preponderance of the evidence that Williams had committed Category Three neglect during her work as a Licensed Practical Nurse with the New York State Office of People with Developmental Disabilities, Central New York Developmental Disabilities Services Office (Pet Ex E). The petitioner seeks relief on two grounds. First, she avers that the ALJ's determination is not supported by substantial evidence. Second, she contends that the ALJ failed "to analyze and consider a Category 4 designation" (Pet. ¶ 22). The petition names as respondents the New York State Justice Center for the Protection of People with Special Needs and its executive director Jeff Wise.
Social Services Law § 493 sets forth different categories of neglect relating to treatment of people with special needs.
In the Notice of Verified Petition, Williams lists amongst the relief sought "an order transferring this matter to the Appellate Division, Third Department" (Pet. at 2).
Respondents have filed an answer in which they raise among their affirmative defenses, the following: "The petition raises a question of substantial evidence ... and therefore this Court does not have subject matter jurisdiction over this proceeding and must transfer it to the Appellate Division pursuant to C.P.L.R. § 7804(g)" (Ans. ¶ 11). Respondents thus request "judgment denying the petition in its entirety, or in the alternative, an order pursuant to C.P.L.R. § 7804(g), transferring this proceeding to a Term of the Appellate Division, Third Department ..." (id. at 4).
Respondents have submitted a proposed order of transfer. Notwithstanding that transfer is sought in Williams' petition, she has submitted an affirmation of counsel in opposition to the proposed order. The affirmation argues that the second argument presented in the petition "specifically raises a question of law which, once answered by the Court, could dispose of the matter in its entirety by requiring a remand back to the Hearing Officer for reconsideration" (Aff. in Opp. ¶ 4 [citing Pet. ¶¶ 22-23] ). Therefore, petitioner contends, the Court should address this argument before deciding on transfer. Respondents have not replied to the affirmation.
On October 2, 2015, respondents submitted a letter seeking an extension of time in which to file an affirmation responding to petitioner's submission. I granted the extension, but no additional papers were filed.
Petitioner's argument turns on the proper construction of CPLR 7804(g), which provides as follows, in relevant part:
"Where the substantial evidence issue ... is raised, the court shall first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue. If the determination of the other objections does not terminate the proceeding, the court shall make an order directing that it be transferred for disposition to a term of the appellate division held within the judicial department embracing the county in which the proceeding was commenced...."
In short, this rule makes transfer of the entire petition mandatory whenever a substantial evidence challenge is raised, except where the matter may be terminated on the basis of an "objection" encompassed within the rule (see Matter of Verdell v. Lincoln Amsterdam House, Inc. , 27 A.D.3d 388, 390, 813 N.Y.S.2d 68 [1st Dept. 2006] ["CPLR Article 78 prohibits the Supreme Court from reaching the issue of whether an agency determination is supported by substantial evidence and requires that such petitions be transferred"] [emphasis added]; Matter of Angello v. National Fin. Corp ., 1 A.D.3d 850, 852, 769 N.Y.S.2d 66 [3d Dept. 2003] [in the "absence of a dispositive objection in point of law," where there is a substantial evidence challenge the "proper procedure" would be to transfer the matter to the Appellate Division]; Matter of Town of Cortlandt v. New York State Bd. of Real Prop. Servs. , 288 A.D.2d 388, 389, 733 N.Y.S.2d 631 [2d Dept. 2001] [when arguments besides a "substantial evidence" challenge are "not objections that could have terminated the proceeding," the entire matter should be transferred]; 6A NY Jur 2d, Article 78 § 373 ["the transfer from the supreme court to the Appellate Division under the conditions stated is mandatory, not discretionary"] ).
The Second and Fourth Departments have construed CPLR 7804(g) to mean that only an argument raised in opposition to the petition, and which would result in its dismissal, can be addressed by the trial court prior to transfer of a substantial evidence question; a claim advanced by petitioner that will "terminate" the proceeding to the extent it will result in him or her obtaining the relief sought is not an "objection" under the rule (see Matter of Putnam Cos. v. Shah , 93 A.D.3d 1315, 1316, 941 N.Y.S.2d 432 [4th Dept. 2012], lv denied 19 N.Y.3d 811, 2012 WL 3931000 [2012] ; [due process claim in petition does not constitute an "objection in point of law" that the Court may resolve prior to transferring a petition, since an affirmative argument is neither a matter set forth by respondent in an answer, or by petitioner in response to "new matter" asserted by respondent]; Matter of Al Turi Landfill v. New York State Dept. of Envtl. Conservation , 289 A.D.2d 231, 231, 735 N.Y.S.2d 61 [2d Dept. 2001], affd 98 N.Y.2d 758, 751 N.Y.S.2d 827, 781 N.E.2d 892 [2002] [arguments made by petitioner in addition to substantial evidence challenge, which included claim that respondent violated its right to equal protection, "were not objections that could have terminated the proceeding within the meaning of CPLR 7804(g)"]; see also Matter of Scott v. Wetzler , 155 Misc. 2d 910, 911, 590 N.Y.S.2d 679 [Sup. Ct., Albany Cty. 1992] [case raising substantial evidence challenge must be transferred to the Appellate Division where respondents raised no "threshold objections in point of law"] ).
The First Department, however, has taken the opposite view. In McCarter v. Franco , 227 A.D.2d 358, 643 N.Y.S.2d 84 [1st Dept. 1996] ), the First Department found that the trial court properly denied respondent's application to transfer an Article 78 proceeding challenging the termination of petitioner's public housing tenancy to the Appellate Division, in light of the trial court's finding that petitioner was denied due process at an administrative hearing. The Appellate Division characterized this finding as "dispositive and sufficient to ‘terminate’ this proceeding within the meaning of CPLR 7804(g)" ( id. at 359, 643 N.Y.S.2d 84 ). Two subsequent First Department decisions have followed McCarter , each upholding the denial of a transfer motion where petitioner raised a meritorious due process claim, on which basis the petition was granted (see Matter of Cannings v. State of N.Y. Dept. of Motor Veh. Appeals Bd. , 84 A.D.3d 610, 610, 922 N.Y.S.2d 779 [1st Dept. 2011] ; Earl v. Turner , 303 A.D.2d 282, 282, 757 N.Y.S.2d 255 [1st Dept. 2003], lv denied 100 N.Y.2d 506, 763 N.Y.S.2d 812, 795 N.E.2d 38 [2003] ).
In Earl , the Court found that the trial court appropriately reached the merits rather than transferring the matter, since the petition did not raise a substantial evidence issue (303 A.D.2d at 282, 757 N.Y.S.2d 255 ). It then noted that the trial court's decision on the merits was "also proper since petitioner's due process claims are dispositive and sufficient to ‘terminate’ this proceeding within the meaning of CPLR 7804(g)" (id. ).
Two Third Department decisions address this issue, and reach contrary conclusions. Matter of Martin v. Platt , 191 A.D.2d 758, 594 N.Y.S.2d 398 (3d Dept. 1993), lv denied 82 N.Y.2d 652, 601 N.Y.S.2d 581, 619 N.E.2d 659 (1993) included a footnote reading as follows:
"Prior to [transferring the case], Supreme Court reviewed and rejected petitioner's claim that he was denied due process because respondent's personal involvement in this matter disqualified him from reviewing the Hearing Officer's decision. CPLR 7804 (g) provides that where, as here, a substantial evidence issue is raised, Supreme Court ‘shall first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue’. In our view, petitioner's due process claim does not qualify as an ‘objection’ as that term is used in CPLR 7804 (f) and (g) and, therefore, Supreme Court need not have addressed that issue. Nevertheless, the matter having been transferred to this court, we ‘shall dispose of all issues in the proceeding’ ( CPLR 7804 [g] )"
This interpretation also receives support from Matter of Hull-Hazard, Inc. v. Roberts , 129 A.D.2d 348, 350, 517 N.Y.S.2d 824 (3d Dept. 1987), affd 72 N.Y.2d 900, 532 N.Y.S.2d 748, 528 N.E.2d 1221 (1988) which noted that "objections" for purposes of 7804(g) are "threshold objections of the kind listed in CPLR 3211(a) which are capable of disposing of the case without reaching the merits. "
( Id. at 759 n. *, 594 N.Y.S.2d 398 ] [emphasis added] ).
The Court took a different tack, however, in Matter of Jimenez-Reyes v. State of New York , 122 A.D.3d 1172, 997 N.Y.S.2d 780 [3d Dept. 2014] ). Without reference to Matter of Martin , the Third Department stated the following: "Before transferring this matter, Supreme Court should have first considered whether, as alleged in the first cause of action, petitioner was deprived of his constitutional due process rights, as the resolution of said issue could have terminated the entire proceeding (see CPLR 7804 [g] )."
Since the Court addressed the petition in any case, this statement is dicta. But that is true as well of the language cited from Matter of Martin .
I note, initially, that Williams' argument is distinguishable from the Due Process claims which the First Department and Matter of Jimenez-Reyes found could be addressed by the trial court, because petitioner's legal argument cannot be addressed without a close examination of the factual record — the same sort which the Appellate Division will need to undertake in order to rule on a substantial evidence challenge. But even putting this distinction aside, I conclude in any case that transfer is appropriate, as the First Department's reading of the transfer rule is not supported by the statutory language, and is contrary to its legislative history. I hold, in short, that an argument advanced affirmatively by petitioner is not an "objection" as contemplated by this rule, and transfer of the petition in light of the substantial evidence challenge it raises is therefore mandatory.
In regard to the text of the statute, the notion that affirmative arguments for relief advanced in the petition constitute "objections" stretch that term well beyond its meaning. Indeed, the statute gives specific examples of what it means by "objections" — lack of jurisdiction, statute of limitations and res judicata — all of which are defects which would result in the petition's dismissal. These statutory examples were added in Chapter 575 of the Laws of 1990, and the legislative history of that provision makes crystal clear that section 7804(g) was not intended to allow Supreme Court to rule on the merits of a petition prior to transfer. The amendments enacted in Chapter 575 were proposed by the Chief Administrator of the Courts ("CAC"), upon the recommendation of the Advisory Committee on Civil Practice, to "clarify the process preliminary to transfer" and eliminate prior ambiguities (Mem. of Unified Court Sys., Bill Jacket to Ch 575 of the Laws of 1990 ["Ch 575 Bill Jacket"] ). Specifically, the CAC sought to make clear that the trial court had the ability to "screen substantial evidence cases and in the process weed[ ] out those with fatal defects unrelated to the substantial evidence question" (id. [emphasis added]; see also Mem. of Dept of Health, Ch 575 Bill Jacket [amendment would require trial court to "dispose of technical legal objections which could terminate an Article 78 proceeding"]; Sponsor's Memo, Ch. 575 [purpose of 7804(g) is to "relieve [the] burden" on the Appellate Division by "filtering out those cases that have fatal defects which would be dismissed in the Appellate Court anyway"] ).
It appears, from both the caselaw and legislative history, that the statute largely confirmed existing practice (see Mem. of New York State Dept. of Social Services, Bill Jacket to Ch 575 ["The bill essentially makes mandatory, and formally authorizes, what has become common practice in the courts"] ).
The construction given CPLR 7804(g) by the First Department is also difficult to square with the efficient operation of the court system. While that Department's decisions have only allowed consideration of the merits prior to transfer in instances where petitioner has shown a violation of his or her due process rights, it is not clear on what basis these rulings can be restricted to such cases — and petitioner's expansion of the trial court's authority to this case would divest it of any possible limiting principle. Indeed, it is implicit in petitioner's argument that any meritorious cause of action that would result in petitioner securing ultimate relief should be addressed by the trial court prior to transfer. More than that: the trial court would be required to consider every substantive argument besides a substantial evidence challenge to see if the petition could be granted on that basis, so as to determine if any such argument would "terminate" the proceeding through petitioner's success, and moot the need for transfer. Then, in the event the Court determined that the petitioner's causes of action should not be granted, the work would be wasted, since the court would then need to transfer the petition for plenary review in the Appellate Division. Such purposeless duplication of effort cannot have been the intended result of the provision.
In light of the above, I decline to follow the First Department cases holding that this Court may rule on an argument by petitioner prior to transfer, and find more persuasive the Fourth Department's ruling in Matter of Putnam Cos. and the Second Department's decision in Matter of Al Turi Landfill , that such an outcome would be inappropriate. I therefore find that petitioner's argument regarding the ALJ's failure to consider Category 4 neglect does not constitute an "objection" for purposes of 7804(g). Since petitioner has raised a "substantial evidence" claim in his Article 78 petition, and there is no objection before me which would terminate the proceeding, I must transfer this case to the Appellate Division.
Accordingly,
It is hereby ORDERED that the Clerk of the Court is directed to transfer the file to the Appellate Division, Third Department, upon service of a copy of this Order with Notice of Entry.