Mirani v Cannavo
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Mirani v Cannavo 2012 NY Slip Op 30871(U) March 30, 2012 Sup Ct, NY County Docket Number: 402496/11 Judge: Donna M. Mills Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON41512012 [* 1] SUPREME COI I PRESENT : IWNNk M. MILLS P Jiistice I - __ - I--- IIEEPAK MlHA Nl, I -V- VINCXN'I' C'AWAVO, el al., l)dfcr1daut. I h c following papers, nilinbered 1 lo were r&l oil this fnotiop for t I Notice of MotiodOrdor to Shdw CauscAnswcring Aftidavits- Exhibits 1Cepl y i ng A Lfi d av it s--- CROSS-MOTION: - ~. - -- ~- fidavits- Eybibi t 3.. .. . . - L , , ,, , , s I ~ --YES ,/NO I I IUpon the fok-cgoing papers, it is ordered that this motiba is: Z)ECI[lE;,L3IN ACCORDANCE WI'I'I I 'I'HC ATTACHED ORDER. I UNFkED JUDGMENT This judgment has not been entered by the County Cl& and notice o entry cannot be served based heww. To f obtain entry, ceunsql or authorized repremhtke must appear in p e r s ~at the Judgment C W s l (ROml 1410). I I * I [* 2] S U P R E M E COURT OF THE c i w OF N E W YORK COUNTY OF NEW YORK: PART 58 X _ I _ - - _ _ _ - - _ _ _ _ _ - - - _ _ _ I _ _ _ _ _ _ _ _ _ _ _ _ _ _ DEEPAK MIRANI, Petitioner, Iridcx N o . : 102496/11 -against- VINCENT CANNAVO, in h i s official capacity as Program Director of the Adult Care Facility Program for the Metropolitan Area Regional. Office of the New York State Department of Health, and NIRAV R. SHAH, in his official capacity as Commissioner of the New York State Department of Health, Motion sequence numbers 001 and 002 are consolidated f o r dispositj.on. In motion sequence number 001, petitioner moves, pursuant to CPLR Article 78, to : (1) direct respondents to enforce thei.r corrective order, dated June 3, 2011, insofar as it requires petitioner's health care facility to comply with New York S o c i a l Services Law; ( 2 ) judicial review o ¬ said corrective order as it (i) failed to address all of petitioner's allegations; (ii) was arbitrary and capricious; and (iii) represents an abuse of discretion with respect to the penalties imposed. Respondents cross move, pursuant to C P L R 3211 (a) (2) a n d (7), to dismiss the petition. UNFtLED JUDGMENT This judgment has not been entered by the County Clerk land notice of entry cannot be served based hereon. To obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk's Desk (Room 141B). [* 3] In motion sequence number 002, Garden of Eden Home for Adults (Garden of Eden) and Martin J . Amsel (Amsel), in his capacity as operator and administrator or Garden of Eden, seek: (1) leave, pursuant to C P L R 7802 ( d ) , to intervene in this proceeding as interested party-respondents; (2) an order amending the caption to add the proposed intervenors as party-respondents; (3) to move, pursuant to CPLR 3211, to dismiss the petition; or, in the alternative, (4) an order allowing the proposed intervenors leave to serve the proposed verified answer; and (5) an order, pursuant to CPLR 408, for leave to conduct limited discovery. BACKGROUND According to the petition, petitioner is a resident of G a r d e n of Eden, an adult care facility, into which he moved in January of 2003. Petitioner suffers with a mental illness, defined as a disabilit-y under the Americans with Disabilities Act. Garden of Eden is an impacted home, licensed by the State of New York, in which 25% or more of the residents have a mental illness. Petitioner recejves S S I benefits, which include a personal needs allowance ( P N A ) of $178.00 per month, in addition to the facility fees of $1,190.00, payable to Garden o ¬ Eden. Pet:i1 ..ionerclaims that the facility s assistant administrator coerced him into signing a contract that provided for the 2 [* 4] facility to deduct $80.00 p e r month from his PNA to cover the facility's charges while petitioner's SSI payments were interrupted. The petition further alleges that petitioner was threatened into signing this contract and misled as to its details. The petition alleges that petitioner, along with other residents, have complained to respondents after experiencing threats, retaliation and other acts defined as "endangerment," inflicted by Amsel and Garden 01 Eden staff in recent years. Petitioner says that an inspection report was issued on March 21, 2011, f i n d i n g that the residence's operator failed to ensure that residents wcre not threatened with retaliation or reprisals from the operator and Garden of Eden staff, and ordering Garden of Eden irnrnediately to restrict Amsel's interactions with the residents. On March 31, 2011, petitioner filed a complaint with the N e w Y o r k State Department of Health's Adult Home Complaint Unit, alleging: (1) the facility had unlawfully pressured him i n L o signing over a portion of his PNA; (2) Garden of Eden was unlawfully withholding retroactive PNA payments in satisfaction of facility f e e s ; arid (3) petitioner's case manager refused to a s s i s t him in requesting a waiver from SSA to resolve or reduce his outstanding overpayment obligations to the government. On April 5, 2011, petitioner w r o t e a letter advising the 3 [* 5] Department of Health that the facili.ty s assistant administrator had pressured him into signing the above-referenced contract. On April 11, 2011, petiti-oner again wrote to the Department of Health, advising it that Amsel had orally threatened him. These letters were acknowledged as received on or about April 22, 2011. On June 3, 2011, respondents sent the following letter, signed by respondent Vincent Cannavo (Cannavo), to petitioner: This is to advise you that we have completed o u r investigation regarding Garden of Eden Home, and were able to substantiate your complaint. The Department is required to identify those areas reviewed during thc inspection. The following areas were reviewed: Resident Services-Case Management and Resident Services-Personal Allowances. Appropriate violation [sic] are being issued f o r the facility to correct. The operator has the right to contest these violations. Should there be a change in the status of the report, you will bc notified. Should you have any further questions or have any addi-tional information you would like to share with us, please c a l l 0swaJ.d Sancho, Coordinator, who may be reached at 212-417-4440. Petition, Ex. H. On July 21, 2011, respondents ordered the following corrective action: CORRECTIVE ACY ION REQUIRED a) The operator must ensure that each resident receives a personal allowance equal to the amount the resident is entitled to, without any modification, as any waiver of the right of an S S I recipient to any portion of his/her personal allowance benefits is null and void. b) The operator must ensure that each resident is lrreated with courteously [sic] and respect, and must not coerce, intimidatc, or make threats of retaliation against any resident f o r any reason. c) The operator must ensure that the aforementioned resident is provided with case management services to 4 [* 6] address his financial needs. A plan must be specifically developed and implemented for that purpose. Submit a c o p y o ¬ this plan for review. The operator shall implement a method of case management where the residents of the facility are assisted with a l l benefits a n d assistance with all financial mattcrs when needed. Submit to ¬ [sic] this DepartmenL with the response to the report a plan on how the facility will implement the assistance with the residents. Petition, Ex. H. On August 9, 2011, petitioner wrote to Cannavo to request notificati-on as to whether Garden of Eden has requested a review of respondents' fjndings, a copy of the corrective action plan required by respondents, and a request that petitioner meek with him to review the investigative report and recommend modifications thereto. Petition, Ex. J. According to petitioner, to date, Garden of Eden has not complied with the corrective order and respondents have failed to ensure Garden of Eden's compliance. In addition, petitioner claims that respondents ignored his complaints asserted against the assistant administrator of Garden of Eden, a n d found his allegations asserted as against Amsel to be unsubstantiated, without gathering any evidence concerning his allegations. In their cross motion, respondents argue that petitioner lacks standing to challenge an administrative action, because respondents have not caused petitioner to suffer an injury, n o r has petitioner st.atcd a claim for mandamus to compel their action, because petitioner has no legal right to compel 5 [* 7] respondents to institute enforcement proceedings which are discretionary and not subject to judicial review. It is respondents position that the order requiring corrective actj.on d i . d not injure petitioner, since the order directs the facility to stop threatening petitioner and to ensure that he receives appropriate case management services. IIence, respondents state that the order benefits, rather than injures, petitioner. Further, respondents insist that petitioner s claims of harm occasioned by their failure to compel Garden of Eden to comply with their order is conjectural at best. In opposition to respondents cross motion, petitioner maintains that he has standing because respondents failure to act. is c a u s i n g him direct and immediate harm. Further, petitioner argues that respondents obligation to e n f o r c e their own orders is not discretionary, but: is mandated by the Social Services Law. Lastly, petitioner asserts that the investigative report fails to identify the basis for respondents finding that there was no substantiation for his claim that the assistant administrator threatened him. In r e p l y , respondents reiterate their initial arguments regarding standing and the discretionary nature of their decision as to what acLions to take regarding enforcement of their orders. In addition, respondents point to the investigative report, which clearly indicates that their findings were based on interviews 6 [* 8] with residents and staff at Garden of Eden, which is their support for the findinq that petitioner's charges asserted as against the assistant administrator were unsubstantiated. In motion sequence number 002, Garden of- Eden arid A r n s e l assert a right to intervene as interested parties who will be affected by t h e ultimate decision of this court. In her affidavit in support oil this motion, the assistant administrator of Garden of Edcn states that an administrative hcaring is under way regarding the allegations of abuse directed at her and Amsel and, therefore, it would be inappropriate for this court to determine such matters prior to a final administrative determination. The court notes that no argument is posited with respect to the branch of the proposed intervenors' motion seeking to dismiss the petition, and no legal authority is provided for proposed intervenors' request for discovery. Tn opposition to this motion, petitioner claims that proposed intervenors are neither interested parties nor is Lheir motion timely, having been asserted more t h a n four months after the administrative action under scrutiny. Petitioner mai.ntains that, in ordcr to intervene, proposed intervenors' claims must relate back t:o petitioner's claims, whereas, in the instant matter, proposed intervenors have indicated no claims, just defenses, and their: position in antithetical to that of petitioner. Moreover, petitioner s a y s that proposed intervenors 7 [* 9] are merely buttressing respondents arguments. In reply, proposed intervenors state that, as proposed respondent intervenors, their claims do not have to be identical to petitioner s c l a i m s , and that their motion is timely, based on the provisions of C P L R Article 78. DISCUSSION At the outset, the court notes that the o n l y affirmativc action requested by petitioner in his notice of pctition and petition is to direct respondents to enforce their corrective action appearing in t h e i r order of June 3, 2011, a n d to review that corrective action as arbitrary, capricious and a n abuse of discretion. It is well settled that a court may not substitute its judgment for that of the board or body it reviews u n l e s s the decision under review is a r b i t r a r y and unreasonable and constitutes an abuse of discretion [internal quotation marks and citation omitted] [emphasis in original] . M a t t e r of Pel1 v B o a r d of E d u c a t i o n of U n i o r i F r e e School D i s t r i c t N o . of S c a r s d a l e & 1 of Towns Mamaronack, W e s t c h e s t e r C o u n t y , 3 4 NY2d 2 2 2 , 232 (1974). In the instant matLer, except for the mandamus request, petitioner is not asking the court to substitute its judgment or to take a n y action other than to review respondents corrective action: he does not a s k the court to vacate, modify or confirm that action. It is not the function of the court, pursuant to [* 10] Article 78 of the C P L R , to review administrative determinations for no purpose o t h e r mere examinaton. Therefore, these branches of the petition a r e denicd. Contrary to respondents' contention, the court finds that petitioner does have standing to maintain this proceeding. Standing is a threshold issue that must be resolved before the court can address the merits of the c h a l l e n g e to the administrative action. S e e N e w York State A s s o c i a t i o n of. N u r s e A n e s t h e t i s t s v Novel.10, 2 NY3d 2 0 7 (2004); S a r a t o g a C o u n t y C h a m b e r of C o m m e r c e , I I I C . v P a t a k i , 100 N Y 2 d 801 (2003), c e r t d e n i e d 540 U S 1017 ( 2 0 0 3 ) ; S e c u r i t y Pacific N a t i o n a l B a n k v E v a n s , 3 1 AD3d 2 7 8 (l"'.. Dept 2006) New York has established a two-pronged test for determining standing to challenge administrative action. First, the petitioner must demonstrate an "injury in fact," meaning that he o r she "will actually be harmed by the challenged administrative action," and the injury must be "more than conjectural." New Y o r k State A s s o c i a t i o n of-N u r s e A n e s t h e t i s t s v Novello, 2 NY3d at 211. In addition, the petitioner must show that the injury is personal to him, as distinct from that of the general public. M a t t e r of T r a n s a c t i v e C o r p . v New Y o r k State Department of Social S e r v i c e s , 92 N Y 2 d 579, 587 (1998) ~ The second prong of the test requires that the injury fall within the zone of interests or concerns sought to be 9 " must [* 11] promoted or protected by the statutory provision under which the agency has acted. N e w York S t a t e Association of Nurse Anesthetists v Novello, 2 NY3d at 211. Petitioner is seeking mandamus to compel respondents to see that Garden of Eden complies with the corrective action ordered by respondents. The order was based on petitioner s claims of unlawful treatment, personal to him, and, since respondents ordcr mandates corrective measures to ensure that petitioner will n o longer suffer such treatment, petitioner has demonstrated that if the orders are not complied with he will suffer personal injury in fact so as to satisfy the first prong of the test to establish standing. The Department+ of Social Services regulations require government: agencies to promote the development of sufficient and appropriate residential care programs for dependent adults and to administer a system of supervision, inspection and enforcement for adult-care facilities which assures compliance with regulations and the maintenance of standards of care. NYCRR 5 485.3. 18 Petitioner is seeking to see that the mandated standard of care is maintained and, hence, he has met the second p r o n g of the test for standing. The court- finds unpersuasive respondents argument that; the action complained of benefits petitioner and, consequently, he lacks standing. Although the corrective mcasure was taken to 10 [* 12] benefit petitioner, if respondents do not see that those measures are c a r r i e d out, rcspondents order acts to his detriment, in that the conditions complained of will continue to exist. Moreover, since respondents investigative report, which resulted in their corrective order, substantiates pet<-tioner scomplaints, and respondents do not deny that those complaints have not been remedied, respondents have failed to rebut petitioner s assertions that he c o n t i . r i u e s to suffer from the complained of actions. Therefore, petitioner s injuries, as evidenced by respondents own report, cannot be deemed speculative. Haviriy determined that petitioner has standing to r n a j - n t a i n this action, ,Lhe court must now address the substance of the petitioner s request f o r mandamus. It i.s well settled that the remedy of mandamus is available to compel a governmental entity or officer to perform a ministerial duty, but: does not lie to compel an act which involves an exercise of judgment or discretion [citation omitted]. Ma1:l:er of B r u s c o v R r a u n , 84 NY2d 674, 679 (1994). Mandamus is often characterized as an extraordinary remedy that is available only in limited circumstances. Traditionally, the writ of mandamus is the relief invoked when a party seeks to compel performance by a governmental agency of a duty enjoined by law. A party seeking relief in the nature of mandamus must show a clear legal right to the relief. However, the availability of a mandamus to compel depends not on the applicant s substantive entitlement to prevail, but on the nature of the duty to be commanded-i.e., mandatory, non-discretionary action [internal citations omitted]. 11 [* 13] Matter of C o u n t y of F u l t o n v Stat-e of N e w Y o r k , 76 N Y 2 d 675, 678 (1930). Simply stated, mandamus does not lie to enforce discretionary duties. Ncw Y o r k C i v i l L i b e r t i e s U i ~ i o i i v S t a Le of N e w Y o r k , 4 NY3d 175 (2005) In support of his position that the action for which he seeks mandamus is ministerial and not discretionary, petitioner relies on 18 NYCRR 5 485.3 (a) (S), which states that the responsibility of government agencies includes the obligation to: administer a system of supervision, inspection and enforcement for adult-care facilities which assures compliance with regulations and the maintenance of standards of care. However, the method whereby the government agency chooses to administer and enforce the adult-case facilities is discretionary and, consequently, inappropriate for mandamus. Pursuant t o 18 NYCRR 5 486.1 (d): The department m a y undertake enforcement action against any operator of an adult care facility who fails to operate thc facility in compliance with applicable provj sions of law and regulation [emphasjs added] . Respondents claim, and the court agrees, that since t.he enforcement action is discretionary (may u n d c r t a k e e n f o r c e m e n t ), the petition must be di.smissed. Even if the court were to agree with petitioner that the corrective acti.on is ministerial, not di-scretionary, he w o u l d still not be entitled to a wri.t of mandamus under the 12 [* 14] circumstances herein presented. It has long been held that \ \ a public entity's decision not to invokc authorized penalties f a l l s within 'the areas of management of public affairs and discharge of public duties where judicial intervention in the ordinary case is l e a s t fittirig' [internal tit-ation omitted] . " Matter of M u l l e n v A x e l r o d , 74 NY2d 580, 583 (1989) (case involved the D e p a r t m e n t of Health's failure to subst:antiate claims of abuse at a nursing home). "Moreover, mandamus is not available 'to compel a general Course of olficial conduct or a long series of continuous acts', performance of which it would be impossible for the c o u r t to oversee [ j nternal citation omitted] . " M a t t e r of C o m m u n i t y A c t i o n A g a i . n s t L e a d P o i s o n i n g v Lyons, 43 AD2d 201, 202-203 (3d Dept 1974), a f f d 36 NY2d 686 (1975). The corrective measures required of Garden of Eden by respondents involve Garden of Eden creating methods of case management to ensure certain rights f o r the resjdents, which would necessarily involve an ongoing course of regulatory enforcement, actions inappropriate for mandamus. See M a t t e r of O k s l e n A c u p u n c t u r e , P.C. v D i n a l . l o , 25 Misc 3d 637 (Sup Ct, NY County 2009), a . f f d 77 A D 3 d 451 (13tDept 2010). Therefore, as a consequence of t h e foregoing, Lhe court concludes that petitioner is not enti-tlcd to a writ of mandamus and the petition must be denied. 13 [* 15] CPLR 7 8 0 2 (d) states that a court may a1.low other interested persons to intervene in an Article 78 proceeding. CPLR 7802 (d) grants the court broader authority to all.ow intervention in an article 78 proceeding than is provided pursuant to C P L R 1013 in an action, which requires a showing that the proposed intervenor s claim or defense a n d the main action have a common questlion of law or fact or CPLli 1 0 1 2 , concerning intervention a s of right [internal quotation marks and citation omitted] M a t t e r of G r e a t e r New York H c a l t h C a r e F a c i l i t i e s A s s o c i a t i o n v DuBuono, 91 NY2d 716, 120 (1998); F e r g u s o n v Bacrios-Paoli, 2 79 AD2d 396 ( l XDept 2001). t An interested person has been defined as one who will be directly allfected by the outcome of the proceeding. C o u n t y of WestchesLer v D e p a r t m e n t of H e a l t h of S t a t e of New Y o r k , 229 AD2d 460 (26 Dept 1996). Whether or not to a1,low a party to intervene, pursuant to CPLR 7802 (d) l i e s within the s o u n d discretion of the court. M a t t e r - of W h i t e v Incorporated Village of Plandome Manor, 190 AD2d 854 (2d Dept 1993). Contrary to petitioner s position, an intervenor does not have to be in the same position as the petitioner; a party may also intervene as a respondent, provided that the proposed intervenor has a real and substantial interest in the outcome of the proceedings. Dept 2 0 0 7 ) . M a t t e r of B e r n s t e i n v F e i n e r , 4 3 AD3d 1161 (2d In the case at bar, the outcome of the proceeding 14 [* 16] directly affects the proposed intervenors. However, since the court: has dismissed the petition, the proposed intervenor's motion, motion sequence number 002 I is denied as moot. CONCLUSION Based on the foregoing, it is hereby ORDERED that respondents' cross moti.on (motion sequence number 001) is granted; and it is further A D J U D G E D that the petition (motion sequence numbEr 001) is denied and the p r o c e e d i , n g is dismissed, with costs arid disbursements to respondents; and it j.s further A D J U D G E D t h a t respondents, having an address at ..-- do recover f r o m petitioner, having an address at costs and disbursements in the amount of $ I c - , as taxed I by the Clerk, and that respondent have execution therefor; and it is f u r t h e r ORDERED that proposed intcrvcnors' motion to intervene (motion sequence number 002) is denied as moot. ENTER: UNFILED JUDGMENT - This judgment has not been entered by the County Cle%onna and ndicc of entry cannot b e served based hereon, To obtain enlry, counsel or authorized representative must a in person at the Judgment Clerk's Desk (Room 1416). 15 \ 11 J I s c. I
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