Ontario County v Harrison-Ross

[*1] Ontario County v Harrison-Ross 2012 NY Slip Op 50551(U) Decided on March 7, 2012 Supreme Court, Albany County Platkin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 7, 2012
Supreme Court, Albany County

Ontario County and ONTARIO COUNTY SHERIFF PHILIP C. POVERO, Canandaigua, New York, 14424, Plaintiffs,

against

Phyllis Harrison-Ross, M.D., Individually and as Commissioner; NEW YORK STATE COMMISSION OF CORRECTION; MEDICAL REVIEW BOARD OF THE NEW YORK STATE COMMISSION OF CORRECTION; STATE OF NEW YORK,, Defendants.



2898-11



APPEARANCES:

Eric T. Schneiderman, Attorney General

Attorney for Defendants

(Adele Taylor Scott, of counsel)

The Capitol

Albany, New York 12224-0341

Michael C. Reinhard, Assistant Ontario County Attorney

Attorney for Plaintiffs

Ontario County Attorney's Office Ontario County Courthouse

27 North Main Street, 4th Floor

Canandaigua, New York 14424

Richard M. Platkin, J.

This is an action brought by plaintiffs Ontario County and Ontario County Sheriff Philip C. Povero ("the Sheriff") seeking a declaration that the Final Report of the New York State Commission of Correction in the matter of the death of Bruce Morgan, an inmate of the Ontario County Jail ("the Final Report") is invalid. Following joinder of issue, defendants move: (a) to convert this action into a special proceeding brought pursuant to CPLR article 78 and, upon conversion, for dismissal pursuant to CPLR 3211 (a) (5) and (7); or (b) in the alternative, for summary judgment pursuant to CPLR 3212.

BACKGROUND

The New York State Commission on Correction ("the Commission") is an Executive branch agency established to "visit and inspect . . . all institutions used for the detention of sane adults charged with or convicted of crime" (New York State Constitution, art XVII, § 5). The organization, powers and duties of the Commission are prescribed in article 3 of the Correction Law. Among other things, the Commission is charged with "mak[ing] recommendations to administrators of correctional facilities for improving the administration of such correctional facilities and the delivery of services therein" and "promulgat[ing] rules and regulations establishing minimum standards for the review of the construction or improvement of correctional facilities and the care, custody, correction, treatment, supervision, discipline, and other correctional programs for all persons confined in correctional facilities" (Correction Law § 45 [2], [6]). While the Commission is authorized to prescribe rules and regulations governing correctional facilities, the Commission's authority to enforce such rules and regulations is highly circumscribed:

In any case where any rule or regulation promulgated by the commission . . . are being or are about to be violated, the commission shall notify the person in charge or control of the facility of such violation, recommend remedial action, and direct such person to comply with the rule, regulation or law, as the case may be. Upon the failure of such person to comply with the rule, regulation or law the commission may apply to the supreme court for an order directed to such person requiring compliance with such rule, regulation or law. Upon such application the court may issue such order as may be just and a failure to comply with the order of the court shall be a contempt of court and punishable as such. (Correction Law § 46 [4]).

Correction Law § 43 establishes a Medical Review Board within the Commission. Pursuant to Correction § 47 (1) (a), the Medical Review Board is charged, inter alia, with investigating and reviewing the "the cause and circumstances surrounding the death of any inmate of a correctional facility." "Upon review of the cause of death and circumstances surrounding the death of any inmate, the [medical review] board shall submit its report thereon to the commission and, where appropriate, make recommendations to prevent the recurrence of such deaths to the commission and the administrator of the appropriate correctional facility" (id. [*2][1] [d]). In addition, the Medical Review Board shall "[i]nvestigate and report to the commission on the condition of systems for the delivery of medical care to inmates of correctional facilities and where appropriate recommend such changes as it shall deem necessary and proper to improve the quality and availability of such medical care." (id. [1] [e]).

On or about December 31, 2009, Ontario County ("the County") reported to the Commission that inmate Bruce T. Morgan hung himself on December 25, 2009 and was declared dead after being transported to a local hospital. In September 2010, following an investigation, the Medical Review Board ("the Board") issued a preliminary report of its findings to plaintiffs for review and comment. On or about October 2010, the Ontario County Attorney submitted written comments and objections to the preliminary report. Among other things, the County acknowledged the Board's authority to investigate and review the cause of inmate Morgan's death and to make recommendations to prevent similar deaths in the future. However, the County took issue with many of the Board's preliminary conclusions and maintained that it would be substantially prejudiced in its defense of a civil action by Morgan's estate if the Board's report were published as written. At a meeting on December 2, 2010, the Board rejected the County's objections and voted to close the report pending the Commission's approval of the report.

The Commission voted to approve the report for public release at a meeting on December 21, 2010. On December 24, 2010, the Final Report was endorsed on behalf of the Commission by defendant Commissioner Dr. Harrison-Ross and forwarded to the County. The Final Report identified certain deficiencies in the County's provision of health-care services to

inmate Morgan. In addition, the Commission made recommendations intended to prevent future inmate deaths. By letter dated June 7, 2011, the County's Department of Mental Health advised the Board that it addressed all of defendants' recommendations.

In the complaint filed in this action, dated April 25, 2011, plaintiffs assert that the Final Report is "invalid and unenforceable", challenge the factual findings and legal conclusions set forth in the Final Report, argue that the Final Report "contains numerous allegations of wrongdoing and legal conclusions that are questions for determination only by courts of law", and argue that defendants acted in excess of their jurisdiction. Defendants answered the complaint and now move for conversion and/or dismissal. At the request of plaintiffs, oral argument was held on the motion on March 2, 2012. This Decision & Order follows.

ANALYSIS

Defendants first maintain that this action should be converted into a CPLR article 78 proceeding and dismissed as barred by the four month statute-of-limitations prescribed in CPLR 217. Alternatively, defendants argue that even if the Court declines to convert this action to a special proceeding brought pursuant to CPLR article 78, the action nonetheless is time-barred under CPLR 217.

"In order to determine the Statute of Limitations applicable to a particular declaratory judgment action, the court must examine the substance of that action to identify the relationship out of which the claim arises and the relief sought" (Solnick v Whalen, 49 NY2d 224, 229 [1980]). If the court determines that the underlying dispute can be or could have been resolved through a form of action or proceeding for which a specific limitation period is statutorily prescribed, that limitation period governs the declaratory judgment action; otherwise, the action is governed by the residual six-year statute of limitations (CPLR 213 [1]). "Here, the question is [*3]whether the four-month Statute of Limitations period applicable to article 78 proceedings should be invoked" (Save the Pine Bush, Inc. v Albany, 70 NY2d 193, 202 [1987] [internal citations omitted]).

It is apparent that the allegations of plaintiffs' complaint could have been raised and resolved in a CPLR article 78 proceeding. "Relief previously obtained by writs of certiorari to review, mandamus or prohibition shall be obtained in a proceeding under [CPLR article 78]" (CPLR 7801). Thus, in an article 78 proceeding, courts may consider: (1) "whether the body or officer failed to perform a duty enjoined upon it by law"; "whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction"; and "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (CPLR 7803 [1-3]).[FN1]

Plaintiffs' principal complaint is that defendants acted in excess of their legal jurisdiction by, among other things, exercising disciplinary or accusatory powers, issuing mandated directives and policy changes, and usurping the role of the courts. These allegations all raise questions in the nature of prohibition and fall squarely fall within the literal language of CPLR 7803 (2). Allegations that defendants omitted relevant facts from the Final Report, took certain facts out of context, failed to adequately consider the objections made by plaintiffs in response to the preliminary report, used inappropriate language in the Final Report or otherwise committed errors of fact and law in preparing the Final Report raise questions subject to review under CPLR 7803 (3), the so-called mandamus-certorari borderline. And while plaintiffs' complaint briefly adverts to a claim of unconstitutionality, it is apparent that any such claim is not directed at the constitutionality of any law, rule or regulation, but rather at defendants' application of its enabling laws and regulations. As such, the challenge is "available as a question for review in such a proceeding under the third question authorized by CPLR 7803 whether the determination was made in violation of lawful procedure [or] was affected by an error of law'" (Solnick, 49 NY2d at 241).

As all of plaintiffs' allegations are cognizable under CPLR 7803, the Court will exercise its discretion to convert this action into a special proceeding brought under CPLR article 78 (CPLR 103 [a]).

"A CPLR article 78 proceeding must be commenced within four months after the challenged determination has become final and binding' or, put another way, when it inflicts an actual, concrete injury' upon the petitioner" (Matter of Town of Olive v City of New York, 63 AD3d 1416, 1418 [3d Dept 2009] [internal citation omitted]). Here, the Final Report was adopted by the Commission on December 21, 2010, and it was signed by Commissioner Harrison-Ross and transmitted to plaintiffs on Friday, December 24, 2010. While defendants argue that the Final Report became final and binding and inflicted the alleged injuries upon plaintiffs as of December 24, 2010, the record is devoid of proof establishing "when [plaintiffs] receive[d] oral or written notice [of the Final Report], or when [plaintiffs] kn[ew] or should have known, of the adverse determination" (Matter of Singer v New York State & Local Employees' Retirement Sys., 69 AD3d 1037, 1038 [3d Dept 2010]). Under the circumstances, the record fails [*4]to conclusively establish that the instant proceeding, which was commenced on April 27, 2011, is time barred under CPLR 217.

However, the Court concludes that the branch of defendants' motion seeking dismissal of the complaint on the merits must be granted. Whatever the admissibility and relevance of the Final Report in civil litigation against plaintiffs, a point upon which this Court expresses no view, it is apparent that the State Constitution and Correction Law article 3 give the Commission and Board broad authority to visit and inspect correctional institutions, make recommendations to improve the delivery of correctional services, establish minimum standards for correctional services, investigate and review the cause of inmate deaths, and make recommendations to prevent similar incidents in the future.

The statutory power and duty of the Board and Commission to determine the cause of an inmate's death and to report thereupon necessarily carries with it the jurisdiction to render opinions as to whether lack of compliance with established laws, rules, regulations, minimum standards promulgated by the Commission, policies or procedures played a part in bringing about such death. In addition, the power to issue recommendations directed at preventing similar incidents in the future carries with it the power to recommend establishing new laws, rules, regulations, standards, policies and procedures or strengthening existing measures. The fact that defendants' opinions regarding the factors that caused an inmate's death and their recommendations for reform may have collateral consequences in a civil litigation does not and cannot deprive the Commission and Board of its statutory jurisdiction. Nor does it entitle plaintiffs to compel the Commission and Board to rewrite its Final Report so as to remove criticism of the County for failing to provide mental health diagnosis, evaluation and treatment services to the subject inmate "[d]espite nearly constant complaints of mental disorder symptoms while incarcerated" (Final Report Finding No. 1).

In this connection, the Court finds plaintiffs' reliance upon Lombard v Wasser (104 Misc 2d 883 [Sup Ct, Monroe Co, 1980]) to be unavailing. In Lombard, the court found that issuance of directives and formulation of policy were outside the Medical Board's jurisdiction, concluding that the Board is subsidiary to the Commission and limited to the powers granted it under Correction Law § 47. However, this is not a case where the Board usurped the powers of the Commission. Rather, in accordance with paragraph (1) (d) of the cited statute, the Board reviewed the cause of and circumstances surrounding the death of the subject inmate, submitted a report thereupon to the Commission and made recommendations to prevent the recurrence of such death. Plaintiffs have failed to demonstrate that the Board acted in excess of this statutory jurisdiction.

Likewise, plaintiffs' submissions fail to identify any procedural errors committed by defendants in carrying out their responsibilities. Nor is there proof that the factual findings set forth in the Final Report are arbitrary, capricious or lacking a rational basis. Further, plaintiffs' argument that defendants issued mandated directives and policy changes is unripe for judicial review in the absence of any application for judicial enforcement (Correction Law § 46 [4]) and, in any event, is patently lacking in merit.[FN2] Finally, plaintiffs have articulated no coherent theory [*5]upon which the Court could conclude that defendants committed an error of law, including the alleged constitutional violations.

Based on the foregoing, it is ORDERED that the branch of defendants' motion seeking conversion of this action to a CPLR article 78 proceeding is granted, and upon conversion, the complaint is dismissed in all respects.

This constitutes the Decision and Order of the Court. The original Decision and Order and materials submitted for in camera review are being transmitted to counsel for defendants. All other papers are being transmitted to the Albany County Clerk for filing. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

Dated:Albany, New York

March 7, 2012

RICHARD M. PLATKIN

A.J.S.C.

Papers Considered:

Amended Notice of Motion, dated November 18, 2011;

Affirmation of Michael F. Donegan, Esq., dated October 25, 2011, with attached exhibits A-K;

Plaintiffs' Memorandum of Law, dated November 22, 2011;

Verified Answer, dated October 25, 2011;

Defendants' Memorandum of Law, dated October 26, 2011;

Affidavit of Michael G. Reinhardt, Esq., dated November 23, 2011, with attached exhibits A-I;

Defendants' Reply Memorandum of Law, dated December 6, 2011;

Affirmation of Michael F. Donegan, Esq., dated December 6, 2011. Footnotes

Footnote 1: This case does not implicate CPLR 7803 (4), which governs review of administrative determinations made following a hearing required by law.

Footnote 2: It is further noted that the County takes the position that it adopted of the recommendations set forth in the Final Report, which arguably renders this issue academic.