| Matter of Adams v Carrion |
| 2011 NY Slip Op 05606 [85 AD3d 1517] |
| June 30, 2011 |
| Appellate Division, Third Department |
| In the Matter of Angela Adams, Appellant, v Gladys Carrion, asCommissioner of the New York State Office of Children and Family Services,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), forrespondent.
Stein, J. Appeal from a judgment of the Supreme Court (Devine, J.), entered January 14,2010 in Albany County, which, in a proceeding pursuant to CPLR article 78, grantedrespondent's motion to dismiss the petition.
This proceeding arises out of certain conduct of the New York State Office of Children andFamily Services (hereinafter OCFS) in relation to a licensed daycare facility owned and operatedby petitioner in the City of Ithaca, Tompkins County. When OCFS inspected the facility inMarch 2005 in anticipation of petitioner's license renewal, she was informed that she was inviolation of several regulations and was provided with a corrective action plan. Petitioner madesome corrections, but disputed the majority of the cited violations. OCFS continued to sendpetitioner communications indicating that she was not in compliance. In accordance with itspractice, OCFS posted the results of its inspections on its Web site. Petitioner first became awareof this in October 2005. Petitioner's facility was again inspected in December 2005 and January2006, and violations were again noted. In February 2006, OCFS allegedly directed the TompkinsCounty Day Care Council to remove petitioner's facility from its referral list.[*2]
OCFS subsequently notified petitioner in June 2006 thatshe was in full compliance, either as a result of corrective action taken by her or because certainof the alleged violations had not been substantiated. The previous cited violations neverthelessremained on OCFS's Web site, although they were marked as "corrected," with no distinctionbeing made between those that were actually corrected and those that were unsubstantiated.Taking the position that the listed violations were all unsubstantiated, petitioner's attorney made awritten request to OCFS in July 2006 that the misleading information be removed from the Website. Based upon the failure of OCFS to take any action, petitioner's counsel sent two subsequentletters, one in August 2006 and one in October 2006, requesting correction of the Web site. In theAugust 2006 letter, petitioner's counsel noted that "[s]ince there has been no response to[petitioner's] previous request for correction, and we have not been advised of any other appealprocess, [petitioner] will consider this communication as exhausting her administrativeremedies." It is undisputed that OCFS never responded to these communications.
In March 2007, petitioner commenced a CPLR article 78 proceeding seeking, among otherthings, a review of the alleged arbitrary and capricious conduct of OCFS, an order directingOCFS to remove from its Web site all unsubstantiated violations with respect to her daycarefacility and compelling OCFS "to provide petitioner and others similarly situated with amechanism to challenge findings of violations." That proceeding was ultimately dismissed,without prejudice, for lack of personal jurisdiction. In the meantime, petitioner closed herdaycare facility. Petitioner then commenced this CPLR article 78 proceeding in March 2009seeking the same relief, in addition to money damages. Respondent moved to dismiss the petitionon various grounds. Supreme Court granted respondent's motion on the basis that the proceedingwas untimely and this appeal ensued.
We affirm. The record supports Supreme Court's conclusion that petitioner's claim istime-barred. The four-month limitations period applicable to CPLR article 78 proceedings of thisnature begins to run when the agency has reached a final and binding determination (seeCPLR 217 [1]; see generally Matter ofDelta Kappa Epsilon [DKE] Alumni Corp. v Colgate Univ., 38 AD3d 1041, 1042[2007]). A determination becomes final and binding for statute of limitations purposes when theparty seeking judicial review is definitely impacted and aggrieved (see Matter of Hogg-Chapman v New YorkState Teachers' Retirement Sys., 83 AD3d 1261, 1262 [2011]; Matter of Luyster Cr., LLC v New YorkState Pub. Serv. Commn., 82 AD3d 1401, 1402-1403 [2011], lv granted17 NY3d 703 [2011]). In determining whether an agencydetermination is final, "consideration must be given to the completeness of the administrativeaction and a pragmatic evaluation [must be made] of whether the decisionmaker has arrived at adefinitive position on the issue that inflicts an actual, concrete injury" (Matter of EssexCounty v Zagata, 91 NY2d 447, 453 [1998] [internal quotation marks and citationsomitted]). There must be also consideration as to whether the injury inflicted can be "'ameliorated by further administrative action or by steps available to the complaining party' " (Walton v New York State Dept. ofCorrectional Servs., 8 NY3d 186, 194 [2007], quoting Matter of Best Payphones, Inc. vDepartment of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30, 34 [2005]).
Petitioner's argument here that OCFS never made a final determination—because itnever responded to her requests to change the information pertaining to her facility on its Website—is unpersuasive. Arguably, a final determination occurred when OCFS notifiedpetitioner on June 7, 2006 that the alleged violations either were corrected or found to beunsubstantiated. At the latest, the limitations period began to run in August 2006, when petitionerfirst [*3]acknowledged that she had exhausted her administrativeremedies. It can be inferred from this acknowledgment that petitioner recognized that OCFS hadarrived at a definitive position and believed that she was injured thereby (see Matter of EssexCounty v Zagata, 91 NY2d at 453).[FN*]Her repeated requests for further action did not render the determination less final (seegenerally Matter of Fishman v Mills, 294 AD2d 764, 765 [2002]). Inasmuch as thisproceeding was not commenced within the limitations period, it was properly dismissed.
Even if petitioner's claims were not barred by the statute of limitations, dismissal would havebeen appropriate on the grounds either that they are moot, inasmuch as the violations have sincebeen removed from the OCFS Web site (see City of New York v Maul, 14 NY3d 499, 507 [2010]), and/orthat petitioner lacks standing to bring them because she is no longer a registered daycare provider(see New York State Assn. of NurseAnesthetists v Novello, 2 NY3d 207, 211 [2004]). As a result of the dismissal ofpetitioner's primary equitable claims for relief, the damages she seeks are no longer incidental toa primary request for relief and are, therefore, not recoverable in this proceeding (see Stefanis v Town of Middletown, 56AD3d 980, 981 [2008]; Lukas v Ascher, 299 AD2d 262, 262-263 [2002]; Matterof United Pioneer Corp. v Office of Gen. Servs. of State of N.Y., 155 AD2d 849, 850[1989]).
Peters, J.P., Spain, Rose and Egan Jr., JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote *: This acknowledgment wasfurther reflected in petitioner's commencement of a CPLR article 78 proceeding in March 2007.