Pinnock v Office of Temporary & Disability Assistance

[*1] Pinnock v Office of Temporary & Disability Assistance 2011 NY Slip Op 50843(U) Decided on May 12, 2011 Supreme Court, Queens County McDonald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 12, 2011
Supreme Court, Queens County

Sharna Pinnock

against

Office of Temporary and Disability Assistance, et al.



21740/2010

Robert J. McDonald, J.

The following papers numbered 1 to 22 read on this Article 78 proceeding by petitioner pro se Sharna Pinnock for a judgment reversing the Fair Hearing determination of the Office of Temporary and Disability Assistance dated May 26, 2010 which determined that there were no issues to be decided. Petitioner further requests that the court clarify the procedures of Bowery Residents' Committee, Inc. (BRC) and Adult Protective Services in a report and make a determination on the issue of consent for the release of records. Respondent Human Resources Administration of the City of New York (HRA) moves for an order dismissing the petition with prejudice, on the grounds of lack of capacity, and failure to state a cause of action, pursuant to CPLR 3211(a)(3) and (7). Respondent BRC separately moves for an order dismissing the petition pursuant to CPLR 3211(a)(7) and 7804(f). Respondent New York State Office of Temporary and Disability Assistance (OTDA)cross-moves for an order dismissing the petition on the grounds of lack of standing, failure to state a cause of action, mootness, improperly seeking to enlarge the administrative record, failure to the Attorney General and statute of limitations, pursuant to CPLR 306-b, 307, 2214, 3211(a)(2)(7) and (8), 7804(c) and (f).

Papers

Numbered

Notice of Petition- Verified Petition-Exhibits ....................................1-4

Notice of Motion-Affirmation-Exhibits (1-2).....................................5-7

Opposing Papers..................................................................................8

Petitioner's Affidavits of Service.......................................................9

Memorandum of Law......................................................................... [*2]

Notice of Motion-Affirmation............................................................10-11

Opposing Papers.................................................................................12

Reply Affirmation-Exhibits (A-B).....................................................13-14

Notice of Cross Motion-Affidavit-Affirmation.................................15-18

Opposing Papers.................................................................................19-22

Memorandum of Law.........................................................................

Reply Memorandum of Law...............................................................

Upon the foregoing papers the petition, motions and cross motion are consolidated for the purpose of a single decision and order and are determined as follows:

Petitioner Sharna Pinnock is the mother of Donovan Pinnock, an adult, now age 26. Mr. Pinnock, is a recipient of medical assistance authorization, and lives with his mother and his younger brother. On July 7, 2008, Mr. Pinnock was referred by HRA, to Bowery Residents' Committee (BRC) and its Adult Protective Services program, based upon allegations that his mother was preventing him from attending a psychiatric day program at Queens Hospital Center where he received his prescribed medications. On July 9, 2008, a BRC case worker attempted the first initial visit with Donovan Pinnock, but was denied access to the home by his mother. However, Mr. Pinnock came to the door, and spoke briefly with the caseworker. Caseworkers thereafter left telephone messages that were not returned and attempted to visit Mr. Pinnock at his home, but were not successful. On July 23, 2008, a caseworker met with Mr. Pinnock during an unannounced visit, at which time he stated that he was taking his medications, and signed a release of information form. Ms. Pinnock was not at home on that occasion. The caseworker scheduled another visit on July 28, 2008, but no one was at home on that day. The caseworkers were unsuccessful in making further home visits.

In conversations with BRC, Ms. Pinnock stated that she had a power of attorney and that she represented her son. On August 4, 2008, HRA determined that Mr. Pinnock was eligible for Adult Protective Services. Shortly thereafter, Sharna Pinnock requested that such services be discontinued. On August 21, 2008, HRA informed Ms. Pinnock that her request was denied.

On August 21, 2008, Sharna Pinnock requested an administrative Fair Hearing, on behalf of Donovan Pinnock, to contest the HRA's determination denying her request to discontinue Adult Protective Services. Mr. Pinnock was represented at the Fair Hearing by his mother Sharna Pinnock. A Fair Hearing was held on November 28, 2008, January 22, 2009, October 26, 2009, and March 1, 2010. At the hearing Ms. Pinnock requested several times that her son's case be closed, as she was caring for him and he did not need Adult Protective Services. She asserted that she should be entitled to make all determinations regarding services for her son, including access to all of his records. On September 22, 2009, HRA closed Donovan Pinnock's file and terminated Adult Protective Services, as he had moved and could not be located.

At the October 26, 2009 Fair Hearing, Mr. Pinnock was represented by his mother and [*3]Manuel Portela, Jr., an attorney. HRA stated at said hearing that Donovan Pinnock's case had been closed on September 22, 2009. Since the matter seemed to be resolved, Mr. Portela withdrew the request for a Fair Hearing. On April 26, 2010, the OTDA issued a Decision After a Fair Hearing, which found that as Donovan Pinnock was no longer receiving Adult Protective Services, there was no issue to be decided.

Ms. Pinnock thereafter requested that the Fair Hearing be restored to the calendar, on the grounds that HRA never provided her son with any services and asserted that HRA's personnel had engaged in improper and harassing conduct. Ms. Pinnock requested that a Fair Hearing decision include findings of fact regarding such conduct. On May 26, 2010, the OTDA issued a decision stating that the "Commissioner does not have jurisdiction over specific acts by Agency personnel except insofar as such acts affect the Appellant's receipt of benefits. In this case, the Appellant's mother did not want Adult Protective Services in the first place, hence her objection to the Agency's non-provision of Adult Protective Services and/or the adequacy thereof, is not at issue. Also, the Commissioner does not have the authority to grant the relief requested. Therefore, the propriety of acts of the Agency personnel is not a hearable issue. Furthermore, the Agency's Representative produced documentary evidence which establishes that the Appellant's Adult Protective Services case had been closed on September 22, 2009. Inasmuch as the Appellant's case has been closed, there remains no hearable issues to be decided." The OTDA thus stated that its decision was that "[t]here was no issue to be decided."

Petitioner Sharna Pinnock commenced this Article 78 proceeding on August 25, 2010, and seeks a judgment vacating the OTDA's determination of May 26, 2010, and requests that the court clarify the procedures of respondent BRC and Adult Protective Services in a report, and make a determination on the issue of consent for the release of records. Her petition contains a series of rambling, disjointed statements regarding the Fair Hearing and complaints pertaining to the alleged conduct of employees of respondents HRA, Adult Protective Services, BRC, Queens General Hospital Center and Queens Hospital Day Treatment Program.

Respondent HRA moves to dismiss the petition, with prejudice. HRA states that although petitioner has named Adult Protective Services as a respondent, it is a part of the HRA and is the administration in charge of assessing and administering protective services for adults. The HRA asserts that Sharna Pinnock does not allege in petition that she has been aggrieved or adversely affected by the HRA's action or inactions, and that she has failed to allege or provide any evidence that she is Donovan Pinnock's authorized representative or has legal authority to act on his behalf. Respondent, thus, asserts Sharna Pinnock lacks standing to commence this proceeding on behalf of her adult son, Donovan Pinnock. Respondent further asserts that mandamus relief is not available, as petitioner's request for an order directing the HRA to make findings of fact with respect to the conduct of its own personnel is improper. The HRA also asserts that the petition fails to state a claim, as it does not set forth any specific facts or occurrences which show that the HRA violated any law or regulation enjoined on it, and does not provide this respondent with any notice of the transactions or occurrences she intends to prove and fails to plead why she is allegedly entitled to the relief requested. Finally, the HRA asserts [*4]that as it closed Donovan Pinnock's file, and did not provide any protective services, petitioner's claims are moot.

Respondent BRC seeks to dismiss the petition on the grounds that it is not a proper party to this proceeding for judicial review of an administrative determination. BRC further asserts that petitioner's request that the court clarify BRC's procedures in a report and settle issues related to consent for the release of information, as well as her vague allegations of harassment, trespass, stalking, perjury and "spread[ing] deceit" may not be asserted in an Article 78 proceeding.

Respondent OTDA has cross-moved to dismiss the petition. The OTDA asserts that since Ms. Pinnock was not the appellant in the administrative proceeding, and cannot show an "injury in fact" as she was not harmed by her adult son's administrative determination, she lacks standing to commence this proceeding. OTDA also asserts that Ms. Pinnock has failed to establish that she has the legal capacity to commence this proceeding on her adult son.

The OTDA asserts that as the petition does not allege any wrongdoing on the part of the OTDA, and as the petitioner ultimately received the relief sought in the administrative proceeding, the petition should be dismissed as it fails to state a cause of action and on the grounds of mootness. OTDA further asserts that the petition improperly includes irrelevant matters which were not raised at the Fair Hearing, and are outside the purview of an Article 78 proceeding.

In addition, OTDA asserts that the petition should be dismissed on the grounds of lack of personal jurisdiction, as petitioner failed to serve the office of the Attorney General, as required by CPLR 307. Finally, the OTDA asserts that as this proceeding was commenced on August 25, 2010 and it was not served until October 13, 2010, the petition should be dismissed for the failure to comply with the provisions of CPLR 306-b.

Ms. Pinnock, in opposition to the motions and cross motion, has submitted papers which also seek to supplement or amend the petition. These papers are not in affidavit form. Nor are they verified. Therefore the court will not consider these papers either a supplemental or amended petition, or in opposition to the respondents' motions and cross motion.

It is well settled that " [i]n considering a motion to dismiss for failure to state a cause of action (see CPLR 3211[a][7]), the pleadings must be liberally construed (see CPLR 3026). The sole criterion is whether [from the complaint's] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Rochdale Vil. v Zimmerman, 2 AD3d 827 [2003]; see also Bovino v Village of Wappingers Falls, 215 AD2d 619 [1995]). The facts pleaded are to be presumed to be true and are to be accorded every favorable inference, although bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration (see Morone v Morone, 50 NY2d 481 [1980]; [*5]Gertler v Goodgold, 107 AD2d 481 [1985], affd 66 NY2d 946 [1985]). When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one' (Guggenheimer v Ginzburg, supra at 275). This entails an inquiry into whether or not a material fact claimed by the pleader is a fact at all and whether a significant dispute exists regarding it (see Guggenheimer v Ginzburg, supra at 275; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:25, at 39)" (Gershon v Goldberg, 30 AD3d 372 [2006]; Hispanic Aids Forum v Estate of Bruno, 16 AD3d 294, 295 [2005]; Sesti v N. Bellmore Union Free Sch. Dist., 304 AD2d 551, 551-552 [2003]; Mohan v Hollander, 303 AD2d 473, 474 [2003]; Doria v Masucci, 230 AD2d 764, 765 [1996]; Rattenni v Cerreta, 285 AD2d 636, 637 [2001]; Kantrowitz & Goldhamer v Geller, 265 AD2d 529 [1999]; Mayer v Sanders, 264 AD2d 827, 828 [1999]; Sotomayor v Kaufman, Malchman, Kirby & Squire, 252 AD2d 554 [1998]).

CPLR 7803 provides that the only questions that can be raised in Article 78 proceeding are "1. whether the body or officer failed to perform a duty enjoined upon it by law"; 2.whether the body or officer proceeded, or is proceeding or is about to proceed without or in excess of jurisdiction; or 3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary or capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of the penalty or discipline imposed; or 4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record supported by substantial evidence."

Here, respondent BRC is not a proper party to this Article 78 proceeding, as the petition seeks judicial review of the OTDA's determination. BRC was not a party to the administrative proceeding, and made no determination which is subject to judicial review. Furthermore, petitioner's vague allegations of harassment, trespass, stalking, perjury and "spread[ing] deceit" may not be asserted in an Article 78 proceeding. Therefore, BRC's motion to dismiss the petition is granted.

That branch of the OTDA's cross motion which seeks to dismiss the petition on the grounds of lack of personal jurisdiction is denied. The affidavits of service submitted by petitioner establishes that the Attorney General was served on February 2, 2010. Petitioner's late service on the Attorney General is excused, as the OTDA's defense has not been impeded (see generally Alexander, Practice Commentaries, McKinney's Cons Laws of New York, Book 7B, CPLR C7804:4). The Attorney General is not a party to the action, and is merely the "prospective attorney" for the OTDA (see Conciatori v Office of Secretary of State, 15 AD3d 397 [2005], appeal denied 5 NY3d 701 [2005]).

That branch of the OTDA's cross motion which seeks to dismiss the petition pursuant to CPLR 306-b is denied. Petitioner was required to serve all of the respondents with a copy of the notice of petition and verified petition no later than October 11, 2010 (CPLR 306-b). Since the OTDA now concedes that it was served with the notice of petition and verified petition on October 7, 2010, service was timely made. [*6]

Turning now to the issue of standing and capacity to sue, in order for a party to seek relief from a court, it must be established as a threshold matter that the party has a "sufficiently cognizable stake in the outcome so as to cast the dispute in a form traditionally capable of judicial resolution" (Graziano v County of Albany, 3 NY3d 475, 479 [1994]) (citation omitted). This involves a two-part inquiry: First, [a petitioner] must show injury in fact,' meaning that [petitioner] will actually be harmed by the challenged administrative action. As the term itself implies, the injury must be more than conjectural. Second, the injury [petitioner] asserts must fall within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004]).

Petitioner Sharna Pinnock, seeks to judicial review of a Decision After a Fair Hearing issued by OTDA in connection with an administrative appeal by her adult son, Donovan Pinnock. Since Mr. Pinnock was permitted to have a representative appear on his behalf at the Fair Hearing, his mother Sharna Pinnock appeared as his representative. Counsel also appeared as Mr. Pinnock's representative on a single occasion during the course of the Fair Hearing. It is unclear as to whether Ms. Pinnock also obtained a power of attorney from her son which permitted her to file and prosecute the administrative appeal on his behalf.

However, as Ms. Pinnock was not the appellant in the administrative proceeding, she cannot show an "injury in fact" in the within Article 78 proceeding, as she was not harmed by her adult son's administrative determination. Moreover, to the extent that petitioner asserts that she commenced this proceeding on behalf of her adult son Donovan, she has failed to demonstrate that she has the legal capacity to bring a proceeding on his behalf. Ms. Pinnock neither alleges, nor has established that she was appointed, pursuant to a power of attorney executed by Donovan Pinnock, to commence a lawsuit on his behalf. Furthermore, although Ms. Pinnock asserts that her son Donovan is mentally incapacitated, she has not established that he has been adjudicated incompetent and that she has been appointed his legal guardian. Since Donovan Pinnock is an adult, his mother cannot bring an action or proceeding on his behalf as his natural guardian. Therefore, as petitioner Sharna Pinnock lacks standing to maintain this Article 78 proceeding and also lacks the capacity to maintain this proceeding on behalf of her adult son, Donovan Pinnock, respondent's HRA's motion and respondent OTDA's cross motion to dismiss the petition are granted.

The court further finds that even if Ms. Pinnock could establish that she has the legal capacity to maintain this proceeding, the petition fails to state a cause of action. At the Fair Hearing, Ms. Pinnock, as her son's representative, sought to have HRA close its file and cease its efforts to provide Adult Protective Services. This is precisely what occurred on September 22, 2009, when HRA closed its file and terminated Adult Protective Services for Donovan Pinnock, due to BRC's inability to locate him. The OTDA in its Decision After a Fair Hearing determined that the matter had been concluded, and that there were no issues remaining to be decided. The petition does not allege that the HRA violated any law or regulation enjoined upon it and does not allege any wrongdoing on the part of the OTDA. Moreover, the issues raised at the Fair [*7]Hearing are moot, as Mr. Pinnock obtained the relief sought.

To the extent that petitioner requests that the court clarify BRC and Adult Protective Services' procedures in a report and settle issues related to consent for the release of information, such relief is not available. It is well settled that an Article 78 proceeding in the nature of mandamus lies to compel performance by an administrative agency of a duty enjoined by law (see Matter of Kupersmith v Pub. Health Council, 63 NY2d 904 [1984]; Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88, 96 [1981]; Matter of Caso v New York State Pub. High School Athletic Assn., 78 AD2d 41 [1980]). Mandamus for such purpose, however, lies only where the right to relief is clear, and the duty sought to be enjoined is the performance of an act commanded to be performed by law and involving no exercise of discretion (Matter of Hamptons Hosp. & Med. Center v Moore, supra). Neither the HRA nor the OTDA has any duty, enjoined by law, to issue a report with respect to its procedures for providing Adult Protective Services and consent for the release of information. Furthermore, to the extent that petitioner is seeking to have the court issue such a report, no such relief is available.

In view of the foregoing, respondent HRA's motion to dismiss the petition in its entirety, with prejudice, is granted. The petition is also dismissed as to Adult Protective Services. Respondent BRC's motion and respondent OTDA's cross motion to dismiss the petition in its entirety is granted.

Respondents Queens General Hospital Center and Queens Hospital Day Treatment Program have not appeared in this proceeding. Petitioner, however, is not entitled to a default judgment against these respondents, as the petition does not allege any claim against these respondents which is subject to judicial review. The relief requested in the petition, therefore, is denied as to these respondents and the petition is also dismissed as to these respondents.

Dated: May 12, 2011

Long Island City, NYHON. ROBERT J. McDONALD