NO PRIVATE CAUSE OF ACTION UNDER ARTICLE 11 SOCIAL SERVICES LAW - PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT

Article 11 of the Social Services Law was enacted as part of the "protection of people with special needs act". The Protection of People with Special Needs Act amended various state laws which are necessary for the protection of persons who are vulnerable because of their reliance on professional caregivers to help them overcome physical, cognitive and other challenges. To implement those safeguards, the act created the New York State Justice Center for the Protection of People with Special Needs, an agency empowered to receive, investigate, and respond to allegations of abuse, neglect, or other `reportable incidents' involving disabled residents receiving services in licensed facilities or provider agencies.

The infant plaintiff, by his mother, and his mother, individually, commenced this action to recover damages for personal injuries allegedly sustained by the infant plaintiff, a special needs individual, at a hospital. They asserted eight causes of action. These causes of action alleged assault, battery, false imprisonment, negligent hiring, supervision, and retention, and negligence. The two additional causes of action alleging violation of Social Services Law article 11 were the fifth and sixth causes of action. In these causes of action, the plaintiffs alleged that the defendants committed physical abuse and deliberate inappropriate use of physical restraints as defined in Social Services Law § 493(4)(b).

Joseph v. Nyack Hospital, 2020 NY Slip Op 7042 - NY: Appellate Div., 2nd Dept. November 25, 2020:

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A legislative intent to create a private right of action for alleged violation of article 11 of the Social Services Law is not fairly implied in these statutory provisions and their legislative history. Finding such a private right of action would be inconsistent with the legislative scheme. The Protection of People with Special Needs Act, generally, and article 11 of the Social Services Law, specifically, "already contain[ ] substantial enforcement mechanisms" (Cruz v TD Bank, N.A., 22 NY3d at 71). These mechanisms in the Act include the creation of the Justice Center, the "central agency responsible for managing and overseeing the incident reporting system, and for imposing or delegating corrective action" (Matter of Anonymous v Molik, 32 NY3d at 40). These mechanisms in article 11 include the maintenance of a statewide vulnerable persons' central register to accept, investigate, and respond to allegations of abuse or neglect; the delineation of possible findings and consequences in connection with an investigation of abuse or neglect allegations, along with procedures for amending and appealing substantiated abuse or neglect reports; and the maintenance of a register of subjects found to have a substantiated category one abuse or neglect case. The substantial enforcement mechanisms "indicat[e] that the legislature considered how best to effectuate its intent and provided the avenues for relief it deemed warranted" (Cruz v TD Bank, N.A., 22 NY3d at 71; cf. Schlessinger v Valspar Corp., 21 NY3d 166 [General Business Law provision relating to termination of service contracts did not create private right of action]; Matter of Stray from the Heart, Inc. v Department of Health & Mental Hygiene of the City of N.Y., 20 NY3d 946 [Animal Shelters and Sterilization Act did not create a private right of action permitting lawsuit by animal rescue organization]; Metz v State of New York, 20 NY3d 175 [Navigation Law provisions concerning inspection of public vessels did not create private right of action in favor of parties killed or injured when tour boat capsized]; City of New York v Smokes-Spirits.Com, Inc., 12 NY3d 616 [public health statute precluding shipment of cigarettes into New York State did not create a private right of action permitting City to sue noncompliant cigarette retailers]; McLean v City of New York, 12 NY3d 194 [Social Services Law provision requiring registration of family day-care homes created no private right of action]; Hammer v American Kennel Club, 1 NY3d 294 [Agriculture and Markets Law statute precluding animal cruelty did not create a private right of action in favor of a dog owner]; Mark G. v Sabol, 93 NY2d 710 [Social Services Law titles 4 and 6 of article 6 did not create private right of action]; Sheehy v Big Flats Community Day, 73 NY2d 629 [Penal Law provision making it a crime for anyone but a parent or guardian to furnish alcoholic beverages to person who was under the legal purchase age did not create a private right of action in favor of such a person who had been injured as a result of her or his own consumption of alcohol]; Konkur v Utica Academy of Science Charter Sch., 181 AD3d 1271, lv granted ___ NY3d ___, 2020 NY Slip Op 73035 [2020] [Labor Law section prohibiting "kick-back" of wages did not create a private right of action]; Eskenazi-McGibney v Connetquot Cent. Sch. Dist., 169 AD3d 8 [Dignity for All Students Act did not create a private right of action in favor of a student injured by a school's failure to enforce its policies prohibiting discrimination and harassment]; T.T. v State, 151 AD3d 1345 [Mental Hygiene Law former § 13.09(c)—which charged the Office of Mental Retardation and Developmental Disabilities with ensuring that the care and treatment provided to persons with developmental disabilities were of high quality and that the personal and civil rights of persons receiving such care and treatment were protected—and relevant regulations did not create a private right of action]). Since creating a private right of action for alleged violation of article 11 would be inconsistent with the legislative scheme, a private right of action for alleged violation of that article may not be fairly implied regardless of whether the plaintiffs are of the class for whose particular benefit the statute was enacted, and regardless of whether recognition of a private right of action would promote the legislative purpose. We hold that there is not a private right action for alleged violation of article 11 of the Social Services Law.

In urging us to reach the opposite conclusion, the plaintiffs point to two instances where article 11, despite limiting disclosure of reports made pursuant to that article, provides that

"the service recipient, and such service recipient's parent, guardian or other person legally responsible for such service recipient may disclose information and reports made available pursuant to this paragraph to an attorney, who shall not further disclose except as is necessary for use by such attorney in rendering advice, assistance and representation" (Social Services Law §§ 496[1][g], [2][b]).

They also point to a provision allowing disclosure to a court in certain circumstances (see Social Services Law § 496[2][f]). However, in view of the substantial enforcement mechanisms contained in the Protection of People with Special Needs Act, generally, and article 11 of the Social Services Law, specifically, the disclosure specified in these provisions fails to convince us that the legislature intended there to be a private right of action for alleged violation of article 11 despite the legislature's failure to explicitly provide one. Moreover, the plaintiffs do not dispute that other forms of civil relief, such as tort causes of action like the ones they asserted in this action, are available to compensate for the injuries that the infant plaintiff allegedly sustained.

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