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."

NEW RULES - TRIAL SUBPOENA

BILL NUMBER:  S4867 - Aug 24, 2018 signed chap.218

 TITLE OF BILL :  An act to amend the civil practice law and rules, in
relation to a subpoena of records for trial

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Advisory
Committee on Civil Practice.

Our Advisory Committee has studied the procedures by which records
intended for use at trial are produced pursuant to a subpoena duces
tecum; and is of the view that counsel should have the option of
having trial material delivered to the attorney or self-represented
party at the return address set forth in the subpoena, rather than to
the clerk of the court. This is especially true where the materials
are in digital format and can be delivered on a disk or through other
electronic means.

In this measure, CPLR 2305 would be amended to add a new subdivision
(d) providing that where a trial subpoena directs service of the
subpoenaed documents to the attorney or self-represented party at the
return address set forth in the subpoena, a copy of the subpoena shall
be served upon all parties simultaneously and the party receiving such
subpoenaed records, in any format, shall deliver a complete copy of
such records in the same format to all opposing counsel and
self-represented parties where applicable, forthwith.

This measure, which would have no fiscal impact, would be effective
immediately and apply to all actions pending on or after such
effective date.

 2015-2016 LEGISLATIVE HISTORY :

Senate 5621 (Sen. Bonacic) (committed to Rules)
Assembly 7057 (M. of A. Titone) (PASSED)

OUT OF STATE HOSPITAL RECORDS

On August 21, Governor Cuomo signed into law S2058, an act to amend Subdivision (c) of Rule 4518 of the Civil Practice Law and Rules to simplify the procedures by which hospital records located outside of New York State may be admitted into evidence in civil actions.

According to the bill's sponsors:

"In many kinds of litigation hospital records provide crucial evidence,
either of the harm suffered by the plaintiff or of the events in
dispute. Under existing law, hospital records are admissible into

evidence if either the custodian of the records testifies in court as
to certain specific foundational facts indicating the records'
authenticity and reliability, or if the custodian provides a written
certification setting forth the same foundational requirements.

For a custodian of hospital records located outside of New York,
providing oral testimony can be difficult or impossible. Parties to
litigation therefore rely on written certification to allow records to
be brought into evidence. However, obtaining a written certification
that meets New York's specific procedural requirements can be
problematic, particularly if a custodian of those records is
unfamiliar with New York rules.

This bill will ease these procedural difficulties for all parties to
litigation by allowing hospital records located outside New York to be
certified in accordance with either the existing New York rules, or
the rules of the jurisdiction where the records are located and that a
custodian of records is likely to understand and comply with
routinely.

Existing New York Statutes, including but not limited to CPLR 4543,
3122 and 3122-a provide an instructive framework for these procedures."

UNEMPLOYMENT INSURANCE - WHAT HAPPENS IF EMPLOYER DOES NOT PAY TAXES

If an Employer does not pay UI taxes, an inquiry will begin under Article 18 of the Labor Law and the Employer will receive a subpoena as noted here.

UNEMPLOYMENT INSURANCE - PREPARATION FOR HEARINGS

Because of the limited discovery available for an ALJ hearing and the fact that certain documents may not be made aware of until after the Employer has testified, I have usually asked the ALJ to issue a subpoena. The Appellate Division, 3rd Department, has stated a standard of when a ubpoena should be issued in the following case:

"IN RE MOSELEY, 61 A.D.3d 1133, 877 N.Y.S.2d 491 [3d Dept 2009]

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 16, 2007, which, upon reconsideration, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because he lost his employment due to misconduct.

Ugochukwu Uzoh, New York City, for appellant.

Andrew M. Cuomo, Attorney General, New York City (Marjorie S. Leff of counsel), for respondent.

Before: Mercure, J.P., Spain, Lahtinen, Malone Jr. and Stein, JJ.

Claimant, an emergency medical technician, was disqualified from receiving unemployment insurance benefits because he lost his employment due to misconduct — namely, falsifying work documents by forging the signatures of hospital receiving agents on two ambulance call reports. At the ensuing hearing, the employer's representative testified that the subject reports were initially missing the signatures of both claimant and the hospital receiving agent and stated that claimant subsequently forged the receiving agent's signature on the reports. Claimant denied signing for the receiving agent and requested that the Administrative Law Judge (hereinafter ALJ) issue a subpoena to obtain the original reports, which were in the possession of the hospital and, according to claimant, would support his contention that the forms had been signed by the receiving agent prior to placing his signature on the documents. The ALJ denied claimant's request and determined that claimant was disqualified from receiving benefits, and the Unemployment Insurance Appeal Board affirmed.

Pursuant to 12 NYCRR 461.4 (c), claimant had the right to request that the ALJ issue a subpoena to compel the production of relevant documents, i.e., the original ambulance call reports that he allegedly falsified. Inasmuch as such reports plainly were germane to the pivotal issue in this matter — whether claimant did in fact falsify work-related forms — we agree with the parties that this matter must be remitted for the production of those reports (see Matter of Liposki [Citifloral, Inc. — Commissioner of Labor], 261 AD2d 665, 666 [1999]; Matter of Mintzer [Sheft — Commissioner of Labor], 256 AD2d 965, 966 [1998]; Matter of Ward [Commissioner of Labor], 256 AD2d 773, 774 [1998]; Matter of Box [Commissioner of Labor], 249 AD2d 608 [1998]). The mere fact that the testimony adduced at the hearing could be sufficient to support the Board's finding that claimant engaged in disqualifying misconduct is of no moment, inasmuch as the Board may not have reached the same conclusion if it had had the benefit of reviewing the requested documents (see Matter of Mintzer [Sheft — Commissioner of Labor], 256 AD2d at 966).

Ordered that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court's decision."

UNEMPLOYMENT INSURANCE - PREPARATION FOR HEARINGS

Here is more on subpoenas. You will recall yesterday that I posted Section 460.4 of the rules and now I would like to point out subdivision (2) which provides: "An attorney who shall have filed with the board a notice of appearance on behalf of any party may issue and cause to be served, subpoenas to compel the attendance of witnesses in accordance with sections 2302 and 2303 of the Civil Practice Law and Rules (CPLR)."

In practice, at least in my experience, this has been a problem. First, let us look at CPLR 2302 and 2303:

" § 2302. Authority to issue. (a) Without court order. Subpoenas may be
issued without a court order by the clerk of the court, a judge where
there is no clerk, the attorney general, an attorney of record for a
party to an action, an administrative proceeding or an arbitration, an
arbitrator, a referee, or any member of a board, commission or committee
authorized by law to hear, try or determine a matter or to do any other
act, in an official capacity, in relation to which proof may be taken or
the attendance of a person as a witness may be required; provided,
however, that a subpoena to compel production of a patient's clinical
record maintained pursuant to the provisions of section 33.13 of the
mental hygiene law shall be accompanied by a court order. A child
support subpoena may be issued by the department, or the child support
enforcement unit coordinator or support collection unit supervisor of a
social services district, or his or her designee, or another state's
child support enforcement agency governed by title IV-D of the social
security act.
(b) Issuance by court. A subpoena to compel production of an original
record or document where a certified transcript or copy is admissible in
evidence, or to compel attendance of any person confined in a
penitentiary or jail, shall be issued by the court. Unless the court
orders otherwise, a motion for such subpoena shall be made on at least
one day's notice to the person having custody of the record, document or
person confined. A subpoena to produce a prisoner so confined shall be
issued by a judge to whom a petition for habeas corpus could be made
under subdivision (b) of section seven thousand two of this chapter or a
judge of the court of claims, if the matter is pending before the court
of claims, or a judge of the surrogate's court, if the matter is pending
before the surrogate's court, or a judge or support magistrate of the
family court, if the matter is pending before the family court, or a
judge of the New York city civil court, if the matter is pending before
the New York city civil court and it has been removed thereto from the
supreme court pursuant to subdivision (d) of section three hundred
twenty-five of this chapter.

§ 2303. Service of subpoena; payment of fees in advance. (a) A
subpoena requiring attendance or a subpoena duces tecum shall be served
in the same manner as a summons, except that where service of such a
subpoena is made pursuant to subdivision two or four of section three
hundred eight of this chapter, the filing of proof of service shall not
be required and service shall be deemed complete upon the later of the
delivering or mailing of the subpoena, if made pursuant to subdivision
two of section three hundred eight of this chapter, or upon the later of
the affixing or mailing of the subpoena, if made pursuant to subdivision
four of section three hundred eight of this chapter. Any person
subpoenaed shall be paid or tendered in advance authorized traveling
expenses and one day's witness fee. A copy of any subpoena duces tecum
served in a pending civil judicial proceeding shall also be served, in
the manner set forth in rule twenty-one hundred three of this chapter,
on each party who has appeared in the civil judicial proceeding so that
it is received by such parties promptly after service on the witness and
before the production of books, papers or other things.
(b) A child support subpoena issued pursuant to section one hundred
eleven-p of the social services law to public utility companies and
corporations, including but not limited to cable television, gas,
electric, steam, and telephone companies and corporations, as defined in
section two of the public service law, may be served by regular mail, or
through an automated process where information sought is maintained in
an automated data base. All other child support subpoenas issued
pursuant to section one hundred eleven-p of the social services law
shall be served in accordance with the provisions of subdivision (a) of
this section."

At the same time, let us review this Appeal Board rule:

"Section 460.6 Representative's fee.
......
(b) When an attorney or registered agent represents a claimant at a board or administrative law judge hearing, the board or administrative law judge shall ascertain whether or not such attorney or registered agent is appearing for claimant on a fee basis. If benefits are allowed by the board or administrative law judge decision, the board or administrative law judge shall require such attorney or registered agent, following the mailing of the decision, to submit a written statement of his claim for compensation for such service, setting forth in detail:
(1) the total benefits allowed;
(2) the time spent in providing representation;
(3) the legal and factual complexities involved; and
(4) any other factors which may be deemed relevant to the board's
determination of the fee that should be allowed.
When such claim is submitted to an administrative law judge, he shall forward such application, together with his recommendation, to the board for appropriate action. When such claim is submitted to the board, action shall be taken thereon by a board.
(c) If a claimant, an attorney or a registered agent is dissatisfied with the fee set by the board, such person may apply to the board for reconsideration of the fee. Such application must be made in writing within 15 days of the mailing of the notice of the fee approval. In its discretion, the board may accord the parties an opportunity to be heard. The chairman of the board shall designate a member of the board, an administrative law judge, or any other person to hold such hearing. If the hearing is held before an administrative law judge or an individual who is not a member of the board, such designee shall conduct the hearing and submit a report to the board including his recommendation as to the fee. As soon as practicable after the receipt of the application and on the documents submitted or after the conclusion of the hearing, the board shall issue a decision setting forth the fee awarded and the reason(s)therefor.
d) No attorney or registered agent shall receive any money from a claimant, as payment of a fee for representing such claimant, until the board has approved the fee to be allowed. If an attorney or registered agent shall have received a fee payment prior to the approval of the board, he shall promptly remit to the claimant any amount received which is in excess of the amount allowed by the board. If the attorney or registered agent shall fail to make such remittance, the claimant may submit an application to the board for an order or restitution. The chairman of the board shall then designate a member of the board, an administrative law judge, or any other person to hold a hearing, upon due notice to all parties including the corporate surety, for the purpose of considering the application. If the hearing is held before an administrative law judge or an individual who is not a member of the board, such designee shall conduct the hearing and submit a report to the board, including his recommendation on the application. Thereafter, the board shall issue an order on the application. Such order shall be deemed the order of the board when signed by any member of the board and when duly mailed and filed in the Department of Labor. A copy of said order shall be mailed to all parties in these proceedings, including the corporate surety."

UNEMPLOYMENT INSURANCE - PREPARATION FOR HEARINGS

I changed the heading to "Preparation For Hearings" as this discussion really relates to any ALJ hearing. Here is more on subpoenas. From the Appeals Board rules:

"Section 460.4 Subpoenas and depositions.

(a) (1) A board member, the chief administrative law judge, a senior administrative law judge or the administrative law judge may issue subpoenas, whenever necessary, to compel the attendance of witnesses and the production of writings, books, contracts, papers, documents or other evidentiary matter. A subpoena duces tecum, unless directed to be issued by a board member, the chief administrative law judge, a senior administrative law judge or the administrative law judge, on his own motion, shall be issued only upon a showing of the necessity therefore by the party applying for its issuance. All of the aforesaid subpoenas shall be issued under the seal of the department.

(2) An attorney who shall have filed with the board a notice of appearance on behalf of any party may issue and cause to be served, subpoenas to compel the attendance of witnesses in accordance with sections 2302 and 2303 of the Civil Practice Law and Rules.

(3) Witnesses subpoenaed for any hearing shall be paid or tendered witness and mileage fees in advance in accordance with the provisions of section 2303 of the Civil Practice Law and Rules of the State of New York.

(4) A motion to quash, fix conditions or modify a subpoena shall be made promptly to the board or to the administrative law judge section to which the subpoena is returnable. A request to withdraw or modify the subpoena shall first be made to the person who issued it and a motion to quash, fix conditions or modify may thereafter be made before the board or the administrative law judge. Reasonable conditions may be imposed upon the granting or denial to quash or modify.

(b) A board member, the chief administrative law judge, a senior administrative law judge or the administrative law judge, whenever necessary, shall take or cause to be taken, depositions of witnesses residing within or without the State."

UNEMPLOYMENT INSURANCE - PREPARATION FOR HEARINGS

Continuing with preparing for a hearing....From the Appeals Board website:

"What is a subpoena? Can you issue a subpoena for me before the hearing?

A subpoena is a piece of paper ordering a witness to come to the hearing, or ordering documents to be brought to the hearing. If you have an attorney, the attorney issues the subpoena. If you have no attorney, notify the hearing office right away by fax or mail if you need a subpoena. Include your name and case number. State the person or document(s) that you want to have subpoenaed, why you can’t bring the witness or evidence on your own, and what you believe the witness or evidence would prove. You will be told if your request is granted or not."