INDEX NO.

2022-53051
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/24/2023

. SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF DUTCHESS

Present:

Hon. Maria G. Rosa, Justice

LAUREN TERRY,

Plaintiff-Petitioner, DECISION AND ORDER

-against- Index No. 2022-53051

NEW YORK STATE OFFICE OF CHILDREN AND Motion Sequence: 1

FAMILY SERVICES, LEANN L. MICHAEL in her
official capacity as Administrative Law Judge, KEELIE
THOMAS in her official capacity as Licensing
Representative of the Office of Children And Family
Services, and FRANCES FRANCO-MONTERO in her
official capacity as Regional Office Manager of the Office
of Children and Family Services,

Defendants- Respondents.

The following papers were considered on Defendants' pre-answer motion seeking to '
dismiss the Amended Verified Complaint-Petition ("complaint"):

. Document: . NYSCEF Doc. No(s).:

AMENDED VERIFIED COMPLAINT-PETITION and
EXHIBITS A-B : 10-12

NOTICE OF MOTION ; 17
MEMORANDUM OF LAW and EXHIBITS A-B 18-20

AFFIRMATION OF JENNIFER CLARK IN OPPOSITION

and EXHIBIT A : : 27-28
AFFIRMATION OFDEAN MCGEE IN OPPOSITION and
EXHIBIT A 29-30
MEMORANDUM OF LAW IN OPPOSITION : 31

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BACKGROUND

This is a hybrid CPLR Article 78 proceeding and civil action. The following allegations
are taken from the complaint and presumed to be true for purposes of Defendants' motion to
dismiss.!

Until the events underlying this matter, Plaintiff-Petitioner ("Plaintiff') was a licensed
foster parent for twenty-eight years, and held a license to operate a Group Family Day Care Home
for twenty-two years, which license was issued and overseen by Defendant-Respondent New York
State Office of Children and Family Services ("OCFS"). During that time, there had been no
allegations of neglect or abuse, or any other disciplinary issues concerning Plaintiff as a foster
parent or as a day care provider.

In her role as a foster parent, Plaintiff had taken in and cared for non-party Zacariah
McBride since he was 10 years old. Mr. McBride stayed in Plaintiff s care after he turned 21
because he had a learning disability. Prior to the incident underlying this matter, there had been no
allegations against Mr. McBride or any indication of behaviors similar to that for which he would
come to be arrested.

In early October 2021, Plaintifftook in another foster child ("M. ") on an emergency basis.
On October 5, 2021, shortly after M.'s arrival at Plaintiffs home, M. told a caseworker at the
Poughkeepsie Children's Home that she had engaged in sexual acts with Mr. McBride. That
evening, a worker from Astor Home for Children came to Plaintiff s home. M. told the worker
that she made up the allegations against Mr. McBride. The worker then removed M. from the
home. Plaintiff also spoke with Child Protective Services ("CPS") that night about the allegations,
along with her suspicion that the allegations were fabricated. CPS informed Plaintiff that it would
contact Defendant-Respondent Keelie Thomas ("Defendant Thomas") at OCFS, and that they
would be visiting her home the next day to investigate.

Instead, on October 6, 2021, detectives from the New York State Police arrived at
Plaintiff s home to investigate. They indicated to Plaintiff that they too suspected the report was
fabricated, but they needed to take Mr. McBride in for questioning. At the officers' request, at
around 11:00 p.m. that evening, Plaintiff went to the New York State Police Barracks. Upon her
arrival, she was informed that Mr. McBride had been arrested and charged with rape in the second
degree and criminal sexual act in the second degree. On June 23, 2022, Mr. McBride pled guilty
to disorderly conduct, a violation, and was sentenced to a fine of$125.00.

On October 7,2021, Defendant Thomas inspected Plaintiffs home. Plaintiff informed her
ofMr. McBride's arrest at that time. Based solely on the charges against Mr. McBride, and without
interviewing Plaintiff, McBride, or M., Defendant Thomas determined that Plaintiffs household
lacked good character and habits, in violation of 18 NYCRR 4l5.16(b)(4), and that Plaintiff was
not capable of providing safe and suitable care pursuant to 18 NYCRR 416.13(a)(3). She also
determined that Plaintiff had failed to notify OCFS of Mr. McBride's arrest in violation of
18 NYCRR 415.15(b)(l2).

IThe parties' submissions on this motion largely repeat these allegations without substantial dispute.

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During the October 7, 2021 inspection, Defendant Thomas further observed that Timothy
Terry, Plaintiffs husband, was again living in Plaintiffs home. Mr. Terry had previously been
reported to and screened by OCFS as a member of the household; however, he moved out of the
home in August 2020, and Plaintiff had forgotten to inform OCFS of his return in June 2021.
Accordingly, Defendant Thomas determined that Ms. Terry was in violation ofOCFS regulations
governing the reporting and screening of individuals living in the household of a licensee (18
NYCRR 416.15(b)(12) and 416.15(b)(19)(i), (ii), and (iii)).

On October 13, 2021, Defendant-Respondent Frances Franco-Montero ("Defendant

Franco-Montero") issued a letter to Plaintiff notifying her that effective immediately, Plaintiffs
Group Family Day Care license was suspended and revoked allegedly due to the aforesaid
regulatory violations. The letter also notified Plaintiff that, effective immediately, she must cease
operation of her daycare and submit a corrective action plan. Plaintiff ceased operation of her
daycare, and thereafter submitted a corrective action plan, a statement indicating that Mr. McBride
would not be allowed back into the home, and materials required by OCFS to perform a screening
of Plaintiff s husband.

On October 19, 2021, Plaintiff, via counsel, notified OCFS of a request for a hearing on
the suspension and revocation of her Group Family Day Care license. OCFS scheduled and held
a pre-hearing conference on November 10, 2021. The hearing was held December 21, 2021, by
Defendant-Respondent Leann L. Michael, Administrative Law Judge ("Defendant Michael").
OCFS issued its written determination on June 3, 2022 upholding the suspension and revocation
of Plaintiff s license.

Plaintif:t:commenced this hybrid proceeding on September 22,2022, initially naming only

OCFS as a defendant-respondent, and seeking relief under CPLR Article 78 and money damages
under a cause of action for violation of due process rights. The parties thereafter stipulated to
several enlargements of OCFS's time to respond. On December 5, 2022, Plaintiff filed the
Amended Verified-Complaint-Petition, adding Defendants Michael, Thomas, and Franco-
Montero, and recasting her due process claims against these defendants only.

On January 13, 2023, Defendants filed the instant pre-answer motion to dismiss the
complaint pursuant to CPLR 321 1(a)(2), (5) and (7), and 7804(g).

DISCUSSION

Defendants first argue that the complaint should be dismissed in its entirety pursuant to
CPLR 3211(a)(7) for failure to state a cause of action. On such a motion, this Court must afford
the claims a liberal construction, accept all facts alleged as true and accord the claimant the benefit
of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87 [1994]). The Court's
function is to determine only whether the facts as alleged fit within any cognizable legal theory
(hi).

Plaintiff s first three causes of action seek annulment of OCFS' s final administrative
determination issued June 3, 2022, on the basis that the determination was arbitrary and capricious,
not supported by substantial evidence, and an abuse of discretion, which issues are raised per

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CPLR 7803[3], [41 Defendants argue that because the complaint also seeks money damages under
other causes of action, and that those damages are not merely incidental to the Article 78 relief
sought, the Article 78 claims are "defective on their face." This argument both misreads the
complaint and fails to apply the correct pleading standard.

It is permissible to join ordinary civil causes of action for money damages with CPLR
Article 78 claims in a "hybrid" proceeding, where both sets of claims arise out of the same set of
facts and circumstances. (Muller v Zoning Bd. of Appeals Town of Lewisboro, 192 AD3d 805, 808
[2d Dept 2021], quoting Bonacker Prop., LLC v Vi!. of E. Hampton Bd. of Trustees, 168 AD3d
928 [2d Dept 2019]). The Second Department has upheld the propriety of joining constitutional
claims with requests for Article 78 relief (Bonacker Prop., LLC, 168 AD3d at 932).

In her first cause of action, Petitioner alleges that OCFS acted arbitrarily and capriciously
by failing to make a finding that there was an imminent danger to the public health or an
individual's safety or welfare, which is required to support a temporary suspension of a daycare
license pursuant to 18 NYCRR 413.5(b)(3). A reading ofOCFS's June 3, 2022 final determination
supports these allegations. For similar reasons, Plaintiffs second cause of action alleging that
OCFS's final determination was not supported by substantial evidence, and third cause of action
alleging that OCFS abused its discretion by imposing a disproportionate penalty in the form of
temporary and permanent license revocation, are likewise supported by Plaintiff s long history of
violation-free operations contrasted with OCFS's failure to find any material health or safety
violations during the October 2021 events.

Plaintiff also asserts one cause of action against each of Defendants Michael, Thomas, and
Franco-Montero-the fourth, fifth and sixth causes of action, respectively-alleging due process
violations resulting in the deprivation of her license to operate a home daycare, which in tum
allegedly resulted in the loss of grant monies and income in an approximate aggregate amount of
$179,814.00. In addition to arguing that these claims also fail to state a cause of action (CPLR
3211[a][7]), Defendants further argue that these claims are barred by the statute of limitations
(CPLR 3211 [a][5]), and that this Court does not have subject matter jurisdiction to hear them
(CPLR 3211 [a][2]).

A license to operate a business is "essential in the pursuit of [a] livelihood and constitute[s]
a right which may not be taken away without due process of law" (Honey Dippers Septic Tank
Services, Inc. v Landi, 198 AD2d 402, 403 [2d Dept 1993]). The deprivation of such a license
may be the basis for a claim under both the Federa12 and New York State3 Constitutions (id.).
Moreover, claims for violations of constitutional rights are properly asserted against the
governmental agents who allegedly deprived the plaintiff of such rights (e.g., Williams v City of
New York, 153 AD3d 1301 [2d Dept 2017]), and are properly brought in Supreme Court (id.; see
also, Buonanotte v New York State Office of Alcoholism and Substance Abuse Services, 60 AD3d
1142 [3d Dept 2009]). Accordingly, since Plaintiff has alleged that each of Defendants Michael,

2 "Once licenses are issued, as in petitioner's
a livelihood. Suspension of issued licenses
licensees. In such cases the licenses are not
Fourteenth Amendment" (Bell v Burson, 402
3 Hecht v Monaghan, 307 NY 461 [1954].
case, their continued possession may become essential in the pursuit of
thus involves state action that adjudicates important interests of the
to be taken away without that procedural due process required by the
US 535, 539,91 S Ct 1586, 1589,29 L Ed 2d 90 [1971]).

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Thomas, and Franco-Montero unlawfully deprived her of her license to operate a daycare by failing
to follow procedures set forth in New York statutes and regulations, and that such deprivation has
caused her damages, her fourth, fifth, and sixth causes of action properly state causes of action for
violation of constitutional rights. Moreover, this Court has subject-matter jurisdiction over these
claims. The Court of Claims does not have subject matter jurisdiction over review of an
administrative agency's determination. (Buonanotte, 60 AD3d at 1144).

Defendants also argue that Plaintiff s due process claims should be dismissed as they were
interposed beyond the four-month statute of limitations applicable to Article 78 proceedings
(CPLR 217[1]). However, as discussed above, Plaintiffs due process claims are asserted
alongside PlainJiff s Article 78 claims, and are not subject to the procedural rules governing Article
78 proceedings. Instead, these claims are governed by a three-year statute oflimitations applicable
to claims under 42 USC ~ 1983. (Williams v City of New York, 153 AD3d at 1305-1306). The
claims are therefore timely interposed.

Defendants' final argument is that this matter should be ordered to be transferred to the
Appellate Division pursuant to CPLR 7804(g). The statute provides, in relevant part:

Where the substantial evidence issue specified in question

four of section 7803 ... 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.

(CPLR 7804[g]). The Court must therefore examine Plaintiff s second cause of action to determine
whether it raises a question of certiorari review of the evidence taken at the December 21, 2022
hearing pursuant to CPLR 7803(4), which would warrant transfer of this matter'to the Appellate
Division (see Matter of Poster v Strough, 299 AD2d 127, 142 [2d Dept 2002]). If, instead, the
cause of action is more properly construed as challenging the rationality of OCFS' s determination
and actions, the claim should be analyzed under the standards in CPLR 7803(3), and therefore not
transferred. (ld.; Matter of Herman v Inc. Vi!. of Tivoli, 45 AD3d 767 [2d Dept 2007]).

Here, Plaintiff s second cause of action is more properly viewed as challenging the
rationality of OCFS' s final determination, rather than the evaluation of the evidence taken at the
December 21, 2022 hearing. The essential wrongdoing alleged by Plaintiff in this claim is that in
order to sustain the temporary suspension of Plaintiff s license, OCFS was required to make a
factual finding of imminent danger, but that OCFS did not make such a finding and nevertheless
sustained the suspension. Upon review of the complaint and OCFS's written determination, it
does not appear that Plaintiff generally contests OCFS's factual findings; rather, Plaintiff alleges
that the decision to hold OCFS's actions and penalties imposed on Plaintiff should not have

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followed from those findings. This matter is therefore not subject to transfer to the Appellate
Division pursuant to CPLR 7804(g).

Based on the foregoing, it is hereby

ORDERED that Defendants' motion is DENIED; and it is further

ORDERED that Defendants shall file and serve via the NYSCEF System an answer to the.
complaint within thirty (30) days of the date of this order; and it isfurther

ORDERED that a preliminary conference shall be held May 2, 2023 at 9:15 a.m.

The foregoing constitutes the decision and order of the Court.

Dated: March dLt ,2023

Poughkeepsie, New York

ENTER:

MA~-----

Scanned:to the E-File System only

Pursuant to CPLR 5513, an appeal as of right must be taken within thirty days after service by a
party upon the appellant of a copy of the judgment or order appealed from and written notice of
its entry, except that when the appellant has served a copy of the judgment or order and written
notice of its entry, the appeal must be taken within thirty days thereof.

McCabe Coleman Ventosa & Patterson, PLLC Office of the Attorney General
42 Catharine Street 1 Civic Center Plaza, Suite 401
Poughkeepsie, NY 12601 Poughkeepsie, NY 12601-

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