City of New York v. Maul

59 A.D.3d 187, 873 N.Y.S.2d 540

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 2009
• Status: Published

Opinions

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered May 1, 2008, which granted plaintiffs-intervenors’ motion for class certification, and denied the motion of defendant-appellant New York City Administration for Children’s Services for partial summary judgment, affirmed, without costs.

Plaintiffs-intervenors are mentally retarded and developmentally disabled individuals. All of them are, or were, in the foster care system under the aegis of defendant Administration for Children’s Services (ACS). Defendant New York State Office of Mental Retardation and Developmental Disabilities (OMRDD) has the responsibility, pursuant to the Mental Hygiene Law, to “assure the development of comprehensive plans, programs, and services in the areas of research, prevention, and care, treatment, habilitation, rehabilitation, vocational and other education, and training of persons with mental retardation and developmental disabilities” (Mental Hygiene Law § 13.07 [a]). Plaintiffs claim that both ACS and OMRDD jointly failed to properly provide for their care.

ACS, plaintiffs contend, has no uniform policy for identifying individuals who are in need of OMRDD services, does not train its staff to recognize such individuals, and rarely coordinates with OMRDD in this regard, despite OMRDD’s expertise in the area. Even when individuals are identified by ACS as needing services, plaintiffs claim that ACS often fails to refer them to OMRDD for further evaluation. When ACS does make a referral, plaintiffs assert that the referral information is often incomplete, resulting in OMRDD’s rejection of the information packet and further delay in delivery of the services to which the applicant has already been found entitled. Plaintiffs claim that ACS’ lackadaisical, ineffective methods are especially harmful to those persons close to aging out of the foster care system, since it significantly limits the time OMRDD has to develop an individual’s placement plan.

Plaintiffs contend that OMRDD shares responsibility for the breakdown in providing appropriate care for mentally retarded and developmentally disabled individuals and independently fails to fulfill its statutory duties. For example, they claim that OMRDD categorically refuses to provide services, other than residential placement, to foster children, even though residential placement is just one of several services offered to similarly disabled children who are not in foster care. In addition, they claim that OMRDD will only accept placement referrals from ACS for those for whom the permanency planning goal is residential placement. Even then, plaintiffs assert that the waiting list for placement is unreasonably long and that people for whom immediate placement is particularly crucial are given no special consideration.

Some individuals, plaintiffs claim, have languished on OMRDD’s wait list for as long as nine years without finding temporary placement. In those cases, ACS has placed mentally retarded and developmentally disabled people in facilities pending placement by OMRDD that are often unduly restrictive and highly inappropriate. Plaintiffs assert this is because ACS performs only cursory investigations into the quality of facilities. ACS also fails to communicate each person’s specific needs to the facility’s staff before the placement.

Plaintiffs allege that, other than themselves, there are at least 150 individuals who are adversely affected by these systemic failures. Accordingly, they sought class certification. Most of the people proposed for the class were those who have been found eligible for OMRDD services but who have been on a waiting list for an inordinate period of time. Plaintiffs also claim that relief is necessary for eligible individuals whom ACS has not yet referred to OMRDD and those whose referral was rejected by OMRDD because of a procedural defect in the referral packet prepared by ACS. Further, they wish to represent those who had aged out of the ACS system prior to placement and those who need services other than adult residential care but are not receiving such services from ACS or OMRDD.

The motion court certified the class and defined it as plaintiffs had proposed: “Individuals with developmental disabilities who are in or have been in New York City Administration for Child[ren’s] Services’ (ACS’s) care or custody and who, during their time in ACS’s care or custody, have not received or did not receive services from ACS and the New York Office of Mental Retardation and Developmental Disabilities to which they were or are entitled.”

CPLR 901 (a) requires that to maintain an action on behalf of a class, it must be established that

“1. the class is so numerous that joinder of all members . . . is impracticable;

“2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members;

“3. the claims or defenses of the representative parties are typical of the claims or defenses of the class;

“4. the representative parties will fairly and adequately protect the interests of the class; and

“5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” This section has been interpreted to require that “[tjhese criteria . . . be broadly construed not only because of the general command for liberal construction of all CPLR sections (see CPLR 104), but also because it is apparent that the Legislature intended article 9 to be a liberal substitute for the narrow class action legislation which preceded it” (Friar v Vanguard Holding Corp., 78 AD2d 83, 91 [1980]).

Guided by this notion of liberality, we find that plaintiffs satisfied all of these factors. First, there are at least 150 class members. ACS does not dispute that the numerosity requirement is satisfied. Second, all members of the class are similarly situated because they allege the same deprivation of specific governmental services to which they are entitled by law. Indeed, all of the class members trace their predicament to the identical violations of law alleged to have been committed by ACS and OMRDD. While ACS argues that the class lacks commonality because to determine the appropriateness of a particular facility requires an individualized inquiry into that individual’s needs, it ignores all of the other alleged harmful results of its conduct which do not require specific factual inquiry. These include unreasonably long wait lists for placement, failures to refer individuals for necessary care and failures to submit complete referral packages. These harms predominate and it is “predominance, not identity or unanimity,” that is the linchpin of commonality (Friar, 78 AD2d at 98; see also Brad H. v City of New York, 185 Misc 2d 420, 424 [Sup Ct, NY County 2000], affd 276 AD2d 440 [2000] [“(e)ven though there may be some questions of law or fact which affect some individual members of the class but not others . . . that is not a reason to deny class certification”]).

Moreover, the existence of commonality: “should not be determined by any mechanical test, but rather, ‘whether the use of a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated.’ ” (Friar, 78 AD2d at 97, quoting LaMar v H & B Novelty & Loan Co., 55 FRD 22, 25 [D Or 1972].)

The remaining prerequisites for class certification under CPLR 901 (a) were also fulfilled. Plaintiffs’ claims meet the typicality requirement for the same reasons they satisfy the commonality test. That is, plaintiffs’ claims and the claims of the class generally flow from the same alleged conduct. The class’s interests will be adequately protected because it is represented by experienced counsel. Also, no conflict exists between the interests of plaintiffs and the class as a whole. To the extent that ACS identifies litigation in the Family Court as an alternative method for adjudicating the claims herein, that forum is inadequate. The limited jurisdiction of the Family Court would prevent it from granting most of the relief sought by the class. Finally, ACS is incorrect that the claims are nonjusticiable, as the action seeks neither to impose policy determinations upon a governmental agency nor to direct an agency as to the manner in which it exercises discretionary functions. Rather, the action attempts to obtain only those rights conferred on the individuals by the legislative branch (see Klostermann v Cuomo, 61 NY2d 525 [1984]).

We reject ACS’ argument that the action should have been dismissed for mootness because each of the plaintiffs has now received the services to which each of them claims to be entitled. This case fits precisely within the exception to the mootness doctrine for cases involving issues important to the public that are likely to evade review (see e.g. Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]). If the case is dismissed the significant issue of whether ACS is complying with law will remain unresolved. Moreover, because an individual’s time in the foster system is necessarily temporary, there is no guarantee that future cases will not likewise become moot.

The cases on which the dissent relies regarding commonality are inapposite. In Solomon v Bell Atl. Corp. (9 AD3d 49 [2004]), this Court decertified a class of people who alleged that they had purchased internet access service from the defendant based on deceptive advertising. This Court held that the commonality test was not met because the plaintiffs could not establish that all of the proposed class members had been exposed to the same advertisement or to any advertisement at all. This case is dramatically different. Here, all of the class members trace their predicament to the identical violations of law allegedly committed by ACS and OMRDD. Furthermore, purchase of advertised internet access can hardly be compared to care critical for the well-being of mentally retarded and developmentally disabled children.

In Mitchell v Barrios-Paoli (253 AD2d 281 [1999]), the proposed class members were public assistance recipients assigned to New York City’s Work Experience Program as a condition for receiving benefits. They challenged the particular work assignments they were given, which they claimed were inappropriate to their particular disabilities. This Court decertified the class, holding that: “Assuming there is a class of persons whom the City routinely assigns to medically inappropriate jobs . . . and to whom the State fails to afford relief . . . the fact that wrongs were committed pursuant to a common plan or pattern does not permit invocation of the class action mechanism where the wrongs done were individual in nature or subject to individual defenses.” (253 AD2d at 291.) Because each class member’s disability and work assignment were potentially unique, the economies which class actions are intended to provide did not exist in that case. Again, this case is factually and legally distinguishable.

Here, there is a “common plan or pattern” and the wrongs done were, largely, not “individual in nature.” Certainly, an individualized assessment is not required to determine whether a foster child who was found eligible for OMRDD services but allowed to languish on a wait list for years, rather than receive necessary services, qualifies for the class. Nor, need a detailed inquiry be had to ensure that a foster child eligible for OMRDD services but rejected by OMRDD because her referral papers were not completed properly by ACS belongs in the class.

We also reject the dissent’s application of the United States Supreme Court’s constrained exception to the mootness doctrine. That exception applies only where the very same individual plaintiff whose claim has been rendered moot is likely to become embroiled in the same controversy again. As even the dissent concedes, that exception is grounded in the United States Constitution’s case and controversy clause, which has no analog in the New York State Constitution. Instead, the dissent relies on an observation by the Court of Appeals in Matter of Hearst Corp. that the principle that a court is limited to determining rights of persons which are actually controverted before it “is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary” (50 NY2d at 713-714). Thus, the dissent suggests that there is no reason not to apply the more limited exception. However, the Court of Appeals itself did not believe that to be the case. In the very same case the Court reiterated that the exception to the mootness doctrine can apply even where “other members of the public” would benefit from judicial review (id. at 715).

We see no reason to wait for “an express ruling from the Court of Appeals,” as the dissent would require. The Court of Appeals has ruled on the issue repeatedly since Matter of Hearst Corp. (see e.g. Matter of M.B., 6 NY3d 437, 447 [2006]; Mental Hygiene Legal Servs. v Ford, 92 NY2d 500, 505-506 [1998]; Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148, 154 [1994]; Matter of Chenier v Richard W., 82 NY2d 830, 832 [1993]), and has consistently restated the exception to the mootness doctrine applied by the motion court here.

Indeed, we can hardly perceive of a case better suited to application of the exception than this one. The people who have the most interest in the immediate adjudication of the claims herein are among the most disadvantaged found in society. Not only were they born with significant obstacles to success, they were neglected, abandoned, or otherwise deprived of care by their parents. Now, it is alleged that the safety net designed by the Legislature for them has failed them as well. Judicial review of these claims should be had now, so that, if it is determined that the system for care of mentally retarded and developmentally disabled persons needs to be corrected, it can be corrected without any unnecessary delay. Concur—Lippman, P.J., Mazzarelli, Buckley and DeGrasse, JJ.