Brownell v. New York State Justice Center for the Protection of People With Special Needs

212 A.D.3d 998

183 N.Y.S.3d 179

In the Matter of Anthony BROWNELL, Petitioner,

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

(Proceeding No. 1.)

In the Matter of Michelle Hale Brownell, Petitioner,

v.New York State Justice Center for the Protection of People With Special Needs, Respondent.

(Proceeding No. 2.)

In the Matter of Scott Norton, Petitioner,

v.New York State Justice Center for the Protection of People With Special Needs, Respondent.

(Proceeding No. 3.)

In the Matter of Billie Ann Scott, Petitioner,

v.New York State Justice Center for the Protection of People With Special Needs, Respondent.

(Proceeding No. 4.)

In the Matter of Shelly Gadway, Petitioner,

v.New York State Justice Center for the Protection of People With Special Needs, Respondent.

(Proceeding No. 5.)

533204/533208/533209/533210/533211

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

Calendar Date: November 21, 2022

Decided and Entered: January 19, 2023

Daren J. Rylewicz, Civil Service Employees Association, Inc., Albany (Scott Lieberman of counsel), for petitioner.

Letitia James, Attorney General, Albany (Chris Liberti-Conant of counsel), for respondent.

Before: Egan Jr., J.P., Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ.

MEMORANDUM AND JUDGMENT

Egan Jr., J.P. Proceedings pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review five determinations of respondent partially denying petitioners’ requests to amend and seal reports of abuse and neglect.

Petitioners were employed at the Sunmount Developmental Disabilities Services Office, a large residential facility for individuals with mental and intellectual difficulties that is operated by the State Office for People With Developmental Disabilities (hereinafter OPWDD) in the Village of Tupper Lake, Franklin County. On October 5, 2013, K.A., a service recipient at the facility, was taken down to the floor and restrained by staff members in a computer room at the facility. Staff members Corey Casciaro, petitioner Scott Norton and petitioner Anthony Brownell were involved in the takedown and subsequent restraint. K.A., who had no prior history of seizures, suffered a grand mal seizure while being restrained on the floor. At some point, staff member Jessica Rice triggered her "blue dot," a device all staff members carried that signaled a need for immediate assistance and their exact location, while another staff member phoned in a "[c]ode 4000" to report a medical emergency. Numerous staff members were at the scene at various points, including petitioners Michelle Hale Brownell (hereinafter Hale), Billie Ann Scott and Shelly Gadway. K.A. received emergency medical attention and was transported by ambulance to the hospital, where he was found to have an abrasion on his head, diagnosed with a head injury and posttraumatic seizure and discharged the same day.

The incident was reported to respondent on October 7, 2013, triggering an extensive investigation that included interviews with numerous staff members, K.A. and other service recipients who were either directly involved in the incident or could otherwise shed light on what had occurred. The investigation uncovered evidence that the takedown had not occurred as described, with eyewitnesses reporting that Casciaro was angry with K.A. because of a comment he had made to Rice – who was Casciaro's girlfriend – and that Casciaro tackled him. After K.A. struck his head on the floor and began seizing, staff members in the area delayed in summoning assistance so that they could discuss their next steps. The subsequent behavior of those staff members reflected an attempt to conceal what had actually occurred, including their failure to tell responding medical personnel that K.A. had struck his head and their false claims that K.A. had attacked Casciaro before the takedown and that they had rolled K.A. onto his side.

The investigation led to criminal charges against Casciaro, Rice, Norton and several other staff members. There were also efforts by OPWDD to take disciplinary action, including one to terminate Norton for his intentionally making false statements to a State Police investigator about the incident and his role in it. The disciplinary matter ultimately proceeded to an arbitration hearing, after which the arbitrator dismissed the notice of discipline because OPWDD had not sustained its burden of proving the allegations against Norton.

After the criminal proceedings had concluded, respondent notified petitioners in September or October 2016 that it had found the allegations of abuse and/or neglect against them, relating to the incident and its aftermath, to be substantiated (see Social Services Law § 493[3] ). Respondent notified petitioners that allegations of category one neglect had been substantiated given their failure to provide adequate medical care to K.A. and that, with regard to Brownell, Gadway, Scott and Hale, allegations of category two abuse had been substantiated in view of their making false statements in their preliminary witness statements to OPWDD (see Social Services Law § 493[4][a][ii] ; [b]). Respondent also notified petitioners that allegations of category one abuse had been substantiated in that they had intentionally made false statements to its investigators in an effort to obstruct their investigation (see Social Services Law § 493[4][a] [xiii] ).

After petitioners’ requests that the reports be amended to unsubstantiated were denied, the matters proceeded to a combined administrative hearing (see Social Services Law § 494 ). Upon Norton's motion to dismiss the allegations against him as barred by the results of his arbitration proceeding, the Administrative Law Judge (hereinafter ALJ) agreed that the category two abuse allegation against him was an attempt to relitigate the issue in that proceeding and dismissed it. The ALJ denied that part of Norton's motion seeking dismissal of the neglect finding against him as time barred by CPLR 214(2), as well as Brownell's motion to dismiss the substantiated findings against him as untimely pursuant to CPLR 214(2) and Social Services Law § 493(1).

After the conclusion of the hearing, the ALJ issued recommended decisions finding that Brownell, Gadway and Scott had committed the alleged conduct.¹ The ALJ issued recommended decisions finding that Hale committed category one abuse by intentionally making false statements to respondent's investigators and that Norton committed category one neglect in failing to provide K.A. with adequate medical care. Respondent adopted the recommended decisions in their entirety, prompting petitioners to commence these CPLR article 78 proceedings. Supreme Court transferred the matters to this Court (see CPLR 7804[g] ), and we confirm.

At the outset, we reject petitioners’ contention that the substantiated report against Brownell was untimely in that respondent did not make findings on the underlying report of abuse and neglect for approximately three years after receipt. Social Services Law § 493(1) provides that, "[w]ithin [60] days of the vulnerable persons’ central register accepting a report of an allegation of abuse or neglect, [respondent] shall cause the findings of the investigation to be entered into the vulnerable persons’ central register." "Although use of the word ‘shall’ generally denotes a mandatory requirement, when addressing time limits imposed on agencies and officials, courts have held that, unless the language used in a statute or regulation shows that the designation of time was intended as a limitation on the power of the body or officer, the provision is directory rather than mandatory" ( Matter of McMillian v. Krygier, 197 A.D.3d 800, 801, 153 N.Y.S.3d 198 [3d Dept. 2021] [internal quotation marks, citations and brackets omitted]; see Matter of Grossman v. Rankin, 43 N.Y.2d 493, 501, 402 N.Y.S.2d 373, 373 N.E.2d 267 [1977] ; Matter of Maria PP. v. Commissioner of NYS Off. of Children & Family Servs., 162 A.D.3d 1297, 1298, 78 N.Y.S.3d 760 [3d Dept. 2018] ). The statutory language gives no indication of such an intent; to the contrary, it explicitly authorizes respondent to "take additional time to enter such findings into the vulnerable persons’ central register" so long as "the reasons for any delay [are] documented and such findings submitted as soon thereafter as practicably possible" ( Social Services Law § 493[1] ). Respondent sufficiently explained that the delay here was due to its desire to wait for the criminal matters arising out of the incident to resolve themselves and, "absent a showing of substantial prejudice that has not been made here," Social Services Law § 493(1) posed no bar to the findings against Brownell ( Matter of Maria PP. v. Commissioner of NYS Off. of Children & Family Servs., 162 A.D.3d at 1298, 78 N.Y.S.3d 760 ).

Petitioners’ separate contention that CPLR 214 barred the findings against Brownell and Norton is also unavailing. CPLR 214 imposes a time limit upon the commencement of certain "action[s]" in court and, as "an administrative proceeding is not an action" within the meaning of the CPLR, its provisions are inapplicable here ( Matter of Fiedelman v. New York State Dept. of Health, 58 N.Y.2d 80, 82, 459 N.Y.S.2d 420, 445 N.E.2d 1099 [1983] ; see CPLR 101, 105[b] ; 201; Matter of IESI N.Y. Corp. v. Martinez, 8 A.D.3d 667, 668–669, 778 N.Y.S.2d 900 [2d Dept. 2004] ; Matter of City of Syracuse v. Public Empl. Relations Bd., 279 A.D.2d 98, 105, 719 N.Y.S.2d 401 [4th Dept. 2000], lv denied 96 N.Y.2d 717, 730 N.Y.S.2d 790, 756 N.E.2d 78 [2001] ; Matter of Taylor v. Vassar Coll., 138 A.D.2d 70, 72, 530 N.Y.S.2d 289 [3d Dept. 1988] ). It follows that the findings were not rendered untimely by CPLR 214 and, in short, that neither Brownell nor Norton demonstrated their entitlement to dismissal of the findings against them as time barred.

We are similarly unpersuaded by petitioner...