HARASSING A TENANT WITH UNFOUNDED CHILD ABUSE COMPLAINTS

If ACS finds that there is no believable evidence that the abuse report is true, it will mark the report as “unfounded”. The report will be kept at the New York State Central Register (SCR) but it will be sealed.   It is only available to the police or to child protective services.  A sealed report is not available to employers or licensing agencies that deal with the care of children. A sealed case will be expunged (erased from SCR records) 10 years after it was made.

This case discusses when the records can be subpoenaed and admitted into evidence in  a landlord/tenant matter.

J.A.K. v. V.M., Date filed: 2021-06-11, Court: Civil Court, Bronx, Judge: Judge Shorab Ibrahim, Case Number: 5318/2020:

"Recitation, as required by CPLR §2219(a), of the papers considered in review of this motion: The court has considered non-party New York City Administration for Children’s Services’ motion to quash a subpoena issued by this court on or about April 9, 2021 and the contents of the court file in reaching its decision.

HISTORY AND PROCEDURAL POSTURE J.A.K., the petitioner in this proceeding (petitioner),1 commenced this Housing Part (HP) action alleging, inter alia, that V.M., the respondent in this proceeding (respondent), harassed her with the intent to cause her to vacate her apartment by, among other things, making unfounded allegations to the New York City Administration for Children’s Services (ACS). On or about April 9, 2021, petitioner submitted a subpoena duces tecum for signature by the undersigned. The subpoena, directed at ACS, seeks the “date, accusation and outcome of all cases for J.A.K. between November 2019 and March 2021.” This court, being aware of provisions of the Social Services Law (SSL), limited the request to the production of these records if petitioner was the subject of any complaints made to the agency.

In response to the subpoena, ACS moves to quash the subpoenas based on its interpretation of provisions of SSL §422. Argument on the motion was heard on June 8, 2021.2

DISCUSSION

ACS first argues that the subpoena must be quashed because the agency did not receive notice required under CPLR §2307 [unless the court orders otherwise, a motion for such subpoena upon a library, or a department or bureau of a municipal corporation or of the state, or an officer thereof shall be made on at least one day's notice].

However, the failure to provide such notice is not a sufficient reason to quash the subpoena, at least under the circumstances presented here. (see People v. Simone, 92 Misc 2d 306, 310, 401 NYS2d 130 [Sup Ct, Bronx County 1977] aff’d 71 AD2d 554 [1st Dept 1979] (“The authorities do not deem the failure to give such one day’s notice as sufficient to deny the relief requested nor does it constitute a ground to quash the subpoena and other experts view the notice requirement as “out-of-date and unnecessary” and is frequently ignored”.) [internal citations omitted]).

And, even if failure to give one day’s notice renders the subpoena defective, since ACS and petitioner have now addressed the merits of the subpoena in the motion to quash, and have argued the merits, the court feels that the motion to quash should be decided on the merits, rather than require petitioner to comply with CPLR §2307.3 (People v. Seeley, 179 Misc 2d 42, 683 NYS2d 795, n.4 [Sup Ct, Kings County 1998]). The court bears in mind petitioner is an unrepresented litigant who was likely unfamiliar with the requirements of CPLR §2307. Taking this into account, for the court to require unrepresented litigants in this high-volume court, where many litigants remain unrepresented, to make motions prior to the issuance of subpoenas directed at agencies like the New York City Department of Housing Preservation and Development (DHPD), the New York State Division of Housing and Community Renewal (DHCR), and DSS/HRA does little to advance these proceedings’ summary nature.

Next, the court turns to whether provisions of SSL §422 allow disclosure of the requested information. It is evident that the petitioner intends to offer ACS records into evidence to prove that respondent has made unfounded complaints to the agency in his alleged attempt to cause petitioner to vacate the subject premises.

In New York, a statewide Central Register of Child Abuse and Maltreatment (SCR) receives reports of suspected child abuse or neglect which is then shared with local social services departments for investigation and, if necessary, appropriate action. If an indication of abuse or neglect is present, the law requires SCR to refer the case for action by the appropriate agency and then to maintain the records until 10 years after the youngest child named in the report turns 18. (see SSL §422(6)). If an investigation reveals no credible evidence to support the allegations, the report is classified as “unfounded” and the records sealed. (see SSL §422(5)).

Normally an “unfounded” report of child abuse or maltreatment is inadmissible as evidence. (see SSL §422(5); People v. LV, 182 Misc 2d 912, 914, 701 NYS2s 865 [Sup Ct, Rensselaer County 1999] (“so great is this mandate that the Legislature has severely circumscribed the conditions under which such a report may be unsealed “)). However, as ACS acknowledges, there are exceptions to the general rule provided in the statute. (see SSL §422(4)(A)(a-aa)); see also Bibbins v. Sayegh, 46 Misc 3d 519, 991 NYS2d 278 [Sup Ct, Westchester County 2014]).

Petitioner, being the subject of the report(s), is among those entitled to the records she seeks. (see SSL §422(4)(A)(d)). Indeed, ACS acknowledges that petitioner is “legally entitled to receive copies of the unfounded reports pursuant to NY SSL §422(5)(a)(iv)”, but argues that the court and respondent are not entitled to them pursuant to NY SSL §422(5)(a).

However, there is no basis for ACS’s position based on the plain reading of the law. SSL §422(5)(b) states in relevant part,

“Notwithstanding any other provision of law to the contrary, an unfounded report shall not be admissible in any judicial or administrative proceeding or action; provided, however, an unfounded report may be introduced into evidence: (i) by the subject of the report where such subject is a plaintiff or petitioner in a civil action or proceeding alleging the false reporting of child abuse or maltreatment” [emphasis added].

Since petitioner is the acknowledged subject of the reports made to ACS and she is the petitioner in this civil proceeding, she is entitled to receive the information requested and to offer it into evidence in support of her claim.

ACS submits that New York courts have already “determined which civil actions are appropriate for the redisclosure and admissibility of unfounded records [sic] pursuant to SSL §422(5)(b), citing to five (5) non-Housing Court matters.4 From these cases, ACS concludes “New York Courts have not found civil actions based merely on a petitioner’s allegation of false reporting of child abuse and maltreatment in Housing Court action appropriate as a threshold matter…” [emphasis added].

ACS essentially argues that because this matter is pending in Housing Court, the exceptions contained in SSL §422(5)(b) do not apply.

However, none of the cases relied upon by ACS stand for this proposition. While the use of unfounded reports in a Housing Court proceeding may be an issue of first impression, or at least has not been reported in a published decision, SSL §422(5)(b) contains no limitations that apply specifically to Housing Court [or any other court]. Nor is there a reasonable policy argument against using the reports in a Housing Court harassment proceeding, while allowing their use in defamation cases, intentional infliction of emotional distress cases, and other matters.

CONCLUSION

Based on the foregoing, ACS’s motion seeking to quash petitioner’s subpoena, which seeks production of records kept by the agency, is denied. ACS is ordered to comply with the subpoena and produce the records sought no later than June 21, 2021.5

This constitutes the Decision and Order of the court.

This matter shall appear on the court’s calendar on June 23, 2021 at 2:30 PM for trial.

Copies of this Decision and Order shall be emailed to the parties or mailed via USPS if no email is available.

Dated: June 11, 2021

Footnotes

1. The court redacts the parties' names given the obvious privacy concerns.

2. Petitioner opposed the motion orally, on the record.

3. ACS, to its credit, made its opposition to the subpoena known in an Affirmation emailed to the court on or about April 30, 2021.

4. ACS motion at page 5-6.

5. Certified copies of relevant records shall be emailed to petitioner and the court at bx-housing-390@nycourts.gov."