City of New York v. MaulCity of New York v. Maul
Lead Opinion
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,
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
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 Children’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 “[t]hese 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.,
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
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,
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,
We reject ACS’ argument that the action should have been
The cases on which the dissent relies regarding commonality are inapposite. In Solomon v Bell Atl. Corp. (
In Mitchell v Barrios-Paoli (
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
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 ho 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” (
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.,
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
Dissenting Opinion
dissents in a memorandum as follows: The class certified by Supreme Court is the one proposed by plaintiffsintervenors: “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 State Office of Mental Retardation and Developmental Disabilities to which they were or are entitled.” As Supreme Court observed in the course of granting the class certification motion, “intervenors do not point to affirmative policies which they claim violate the law.”
In my view, the class certification motion is controlled by well-settled law and, in particular, Justice Rosenberger’s decision in Mitchell v Barrios-Paoli (
Whether a putative class member was denied services to which he or she was entitled is not a question that can be resolved in the abstract. Rather, as in Mitchell, individualized determinations would be necessary to determine whether any putative member of the class is a member of the class. Indeed, whether any individual is a member of the class necessarily entails a fact-bound determination that he or she has a valid claim on the merits. Thus, to determine whether any individual is a member of the class, not only must the particular services he or she did not receive be identified, it also must be established that the individual was entitled to those services under state or federal law. The necessity for these individual and fact-specific determinations makes it pointless at best to certify a class (id.) For these reasons, as in Mitchell, we should reverse and deny the motion for class certification.
This Court decertified the class for another reason, after assuming arguendo that all members of the class had seen the same advertisements: “questions as to whether each individual was reasonably misled by them predominate, given the alternative sources of information about [the internet] service that each may have had” (id. at 54). Thus, “individual trials would be required to determine whether a reasonable consumer . . . would have been misled by defendants’ representations” (id.; see also Hazelhurst v Brita Prods. Co.,
That the interveners allege systemic failures by ACS does not support the certification of the class. As Justice Rosenberger observed in Mitchell, “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” (Mitchell,
The majority cites a litany of alleged failures by ACS and the Office of Mental Retardation and Developmental Disabilities (OMRDD) to support a claim of “systemic failure.” The first point to be made, however, is that the majority’s reliance on claimed “systemic failures” is misplaced. The statements quoted above from our opinion in Mitchell and from the Tenth Circuit’s
Second, the highly fact-bound nature of the alleged failures is apparent. The majority writes, for example, that “[m]ost 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” (emphasis added). Under the first sentence quoted above, membership in the class will depend, among other things, on identifying those who were found “eligible” (but presumably not any persons who may incorrectly have been found eligible) and who have been waiting for a period of time that can be characterized, by some unknown standard, as “inordinate.” Under the second sentence, membership in the class will depend, among other things, on identifying other “eligible” individuals—which certainly is a highly fact-bound process— and whose referral was rejected because of a “procedural defect,” which surely must be determined on a case-by-case basis.
Similarly, the majority relies on allegations that “the waiting list for placement is unreasonably long and that people for whom immediate placement is particularly crucial are given no special consideration” (emphasis added). Obviously enough, case-by-case determinations must be made to determine whether any particular putative class member was on a waiting list for an “unreasonably” long period and whether the immediate placement of any individual is “particularly crucial.” So, too, with the majority’s reliance on allegations of placements by OMRDD “that are often unduly restrictive” and “highly inappropriate” (emphasis added).
My point is the one made in Mitchell, Solomon and Hazelhurst. In all three cases we held that class certification was inappropriate because “determining who is a member of th[e] class would require individualized examination of each person’s medical history and the physical demands of her assigned task,” (Mitchell,
I also disagree with the majority’s conclusion that Supreme Court properly denied the City’s motion for partial summary judgment dismissing as moot the intervenors’ claims for prospective relief. Of the 11 intervenors, eight now are in OMRDD’s care and thus neither need nor are entitled to any services from ACS. The remaining three intervenors were referred to and accepted by OMRDD and are awaiting placement; accordingly, they have only historical and not current objections to planning, placements and services provided by ACS. For these reasons, the claims for prospective relief should have been dismissed as moot (Saratoga County Chamber of Commerce v Pataki,
The intervenors essentially concede that the claims for prospective relief otherwise are moot but, relying on Matter of Jones v Berman (
In the first place, this exception requires, among other things, “a reasonable expectation that the same complaining party will be subject to the same action again” (Davis v Federal Election Commn., 554 US —, —,
In Matter of Hearst Corp., the Court of Appeals stated that one element of this exception is “a likelihood of repetition, either between the parties or among other members of the public” (
Nor does the claimed importance of the intervenors’ claims for prospective relief save them from dismissal on mootness grounds. On the one hand, if only the particular, fact-bound claims of each intervenor were litigated, resolving any of them favorably to an intervenor would establish nothing more than that the intervenor did not receive some service or services from ACS to which he or she was entitled under the specific
Because the exception to the prohibition against deciding moot disputes does not apply for the foregoing reasons, I need not determine whether ACS is correct in arguing that claims that foster children with developmental disabilities are denied services to which they are entitled do not typically evade review given the broad and ongoing jurisdiction of Family Court over foster children. I note, however, that although decertification would be required if ACS’ argument based on Family Court’s jurisdiction is correct, the majority disposes of that argument with the conclusory assertion that Family Court would be an “inadequate” forum because “[t]he limited jurisdiction of the Family Court would prevent it from granting most of the relief sought by the class.” The majority, however, does not identify either the respects in which that jurisdiction is limited or the particular forms of relief Family Court is incapable of granting to individual class members. Finally, because I believe that the class should be decertified in any event, I also need not address the question of whether dismissal of the intervenors’ claims for prospective relief provides an independent ground for decertifying a class seeking that relief (cf. Simon v Eastern Ky. Welfare Rights Organization,
Notes
. The intervenors are not persuasive to the extent they argue that the claims for prospective relief are not moot because appropriate placements for certain of them occurred “not due to ACS fulfilling its statutory requirements, but rather through the efforts of [their] counsel and the State.” The Supreme Court rejected a similar claim that a case should not be considered moot because, among other things, of “the dilatory tactics of the state attorney general’s office” (Spencer v Kemna,
. Permitting a party to maintain an action because another party, i.e., not the plaintiff, is or may be subject to the same allegedly unlawful action legitimizes what Professor Monaghan describes as “a genuine third party claim—one not susceptible of a first party formulation” (Monaghan, Third, Party Standing, 84 Colum L Rev 277, 282 [1984]). As Professor Monaghan observes, to the extent that a litigant presents “a genuine third party claim . . . the litigant is essentially a judicially licensed private attorney general. Talk of third party standing in these cases obscures the doubtful basis of federal judicial authority to create such private attorneys general” (id.; see also id. at 310-316 [questioning the authority of the judiciary to license such third-party claims]).