Matter of Harper v New York State Cent. Register of Child Abuse & Maltreatment
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Matter of Harper v New York State Cent. Register of Child Abuse & Maltreatment 2014 NY Slip Op 31364(U) May 23, 2014 Supreme Court, New York County Docket Number: 101332/2013 Judge: Peter H. Moulton Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNEDONS/28/20141-----------------------------------------[* 1] Index Number : 101332/2013 HARPER, REGINA NYS REGISTER OF CHILD ABUSE Sequence Number: 001 ARTICLE 78 ... · 1. .·.. ··. . ·.. ·.···.. . ·. ' D~: 5l~ >it L,/ . l I CHEC~ . ll<IU'ElllkH. ~ULTQ'·~-#==~=====:::--,--. J.s.c .. ~CODaTJUSTI ¢ .· ·.~ . · . ONE' ........... :.....................................,.............. :.... 2. CHECK AS APPROPRIATE: ...........................MOTION IS: .ifcASE DISPOSED 0 GRANTED 0 DENIED 3. CHECK IF APPROP$1ATE: .................................. ~............. 0 SETTLE 9RDER Doo~orPOST . . ~DISPOSITION 0 GRANTED IN PART - 0 OTHER 0. SUBMIT ORDER 0 FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 57 -----------------------------------x In the Matter of the Application of REGINA HARPER Petitioner, for a Judgment pursuant to Article 78 Of the Civil Practice Law & Rules, Index No.: 101332/2013 -againstNEW YORK STATE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT and NEW YORK CITY ADMINISTRATION FOR CHILDREN'S SERVICES, Fl LED i MAY 2 8 2014 Respondents. .... ------------------------------~ ,. ~ · ........ I ~..d .. ¢.: PETER H. MOULTON, J.S.C.: ·- In this Article 78 proceeding, petitioner challenges a fair hearing determination dated May 21, 2013 by an Administrative Law Judge at the Department of Special Hearings. The ALJ upheld the determination of respondent New York City Administration for Children's Services of child maltreatment. maltreatment months fell brother. arose from an incident where The only finding of a child of fourteen from his crib while playing with his nine year old Both children were in petitioner's care at the time. ACS found that petitioner's failure to immediately take the child to a doctor constituted maltreatment. She instead took the child to a regular doctor's appointment scheduled within two to three days of -1- [* 3] the incident. There is nothing in the record to indicate that the child suffered any lasting damage. Respondent New York State Office of Children and Family Services (sued herein as "New York State Central Register of Child Abuse and Maltreatment") limitations grounds. Beth Mancini, ("OCFS") moves to dismiss on statute of OCFS offers the affidavit of its employee who recites that pursuant to OCFS procedures the decision was mailed to petitioner "on or before May 21, 2013." She does not explain how it could have been mailed before May 21, as that is the date that the decision was issued. that the date of mailing is the accrual Respondent argues date for statute of limitations purposes. The petition was filed on September 26, 2013. more than four respondent is proceeding months correct is after that time-barred May May 21, 21 under 2013. was the the This date is Accordingly, accrual if the statute four-month date, of limitations provided by CPLR 217(1). Petitioner admits that she received the decision, but on May 28, 2013. showing. Her affidavit is sufficient She does not deny receipt; to rebut respondent's rather she states that she finally received the decision seven days after mailing. This would appear to constitute a longer than usual lag time for US mail, but -2- [* 4] it is certainly the case that US mail is sometimes delayed. The limitations period for instituting an 1 Article 78 proceeding challenging final agency action does not begin to run until the aggrieved party is aware of the determination, and the fact that she is aggrieved by it. Novello, 306 AD2d 787.) (See Alterra Healthcare Corp. v Accordingly, petitioner's receipt of the decision is the proper accrual date for the commencement of the running of the four month period. (See Hasberry v New York City Department of Education, 61 AD3d 523; Ousmane v City of New York, 7 Misc3d 1016[A] .) Therefore May 28, 2013 is the correct accrual date and the petition was timely brought. The motion is denied. OCFS shall have 20 days to answer the petition from service of a copy of this decision with notice of entry. At oral argument, the parties agreed that if this court were to find that the proceeding was not time-barred, petition raises a substantial evidence determined by the First Department. question then the that must be (CPLR 7804 [g].) Accordingly, it is ORDERED that, pursuant to CPLR 7804(g), the application by petitioner to vacate an annul a determination by respondents is respectfully transferred to the 1 Appellate Division, First For comparison's sake, CPLR 2103 adds five days for service of papers by mail in a pending action. This provision does not apply to the facts of the instant case as there was no "pending action" at the time the decision was mailed to petitioner. -3- [* 5] Department, for disposition pursuant to CPLR This 7804(g). proceeding involves an issue as to whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction of law, is, on the entire record, supported by substantial evidence (CPLR 7803[4] .) Petitioner shall serve a Clerk who Division, is directed First to copy of this order on the County transfer Department, after the file receipt to of the the Appellate answer of respondent New York State Office of Children and Family Services (sued herein as "New York State Central Register of Child Abuse and Maltreatment") This constitutes the decision and order of the court. ~~~ Dated: May 23, 2014 )l(JH. PEl'ERH. MOULTON FILED -4- J.S.C.
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