On June 08, 2023 a
AFFIDAVIT OR AFFIRMATION IN SUPPORT OF MOTION (Motion #1) - SUPPLEMENTAL ATTORNEY AFFIRMATION
was filed
involving a dispute between
Michael P Mcwilliams,
and
Children'S Home Of Jefferson County,
for Torts - Other (Neg, Def, Prima Facie Tor)
in the District Court of Jefferson County.
Preview
FILED: JEFFERSON COUNTY CLERK 10/19/2023 06:01 PM INDEX NO. EF2023-00002318
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 10/19/2023
SUPREME COURT OF STATE OF NEW YORK
COUTY OF JEFFERSON
In the Matter of the application of:
MICHAEL PAUL MCWILLIAMS, SUPPLEMENTAL ATTORNEY
AFFIRMATION
OF RICHARD L. WEBER, ESQ.
Plaintiff-Petitioner,
Case No.:
v. EF2023-00002318
CHILDREN'S HOME OF JEFFERSON COUNTY,
Defendant-Respondent.
RICHARD L. WEBER, ESQ., being under penalty of perjury, states as follows:
1. I am an attorney, duly licensed to practice law in the State of New York
and I am a member of the law firm Bond, Schoeneck & King, PLLC ("Bond"), attorneys
for Defendant Children's Home of Jefferson County ("Defendant").
2. I make this Supplemental Attorney Affirmation in further support of
Defendant's CPLR 3211 motion to dismiss the "Verified Complaint" and action of Plaintiff
Michael Paul McWilliams, and in response to a request of the Court (set forth in its
Memorandum Decision and Order, dated September 14, 2023) for additional briefing on
the motion.
3. The Summons and Complaint served upon Defendant are on the
NYSCEF case docket at NYSCEF Doc. Nos. 1 and 2, and additionally, Doc. No. 6
(Exhibit A to my attorney affirmation (NYSCEF Doc. No. 5)).
4. Defendant filed its motion to dismiss the Complaint (see generally
NYSCEF Doc. Nos. 4-1 O).
1
1 of 3
FILED: JEFFERSON COUNTY CLERK 10/19/2023 06:01 PM INDEX NO. EF2023-00002318
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 10/19/2023
5. Plaintiff opposed the motion to dismiss (see generally NYSCEF Doc. Nos.
23-24).
6. In reply, I submitted an additional Attorney Affirmation and Memorandum
of Law (NYSCEF Doc. Nos. 25-26).
7. Oral argument was had on the motion on August 23, 2024, after which
The Court issued its Memorandum Decision and Order which, inter alia, requested
additional briefing on "the narrow issue of whether [Defendant] is a 'sponsoring [social
services] agency' or otherwise held the authority of the applicable 'sponsoring [social
services] agency' within the meaning of 18 NYC RR 358-1.1 (f) (10)" (NYCEF Doc. No.
27 at p 3).
8. There is no allegation set forth in the Complaint alleging the "denial" of a
"right" to hearing. The closest Plaintiff comes to making such an allegation is to allege
that Plaintiff "suggested [to a former CHJC employee] an Administrative Hearing to
challenge the Defendant" (NYSCEF Doc. No. 2, 7 12).
9. The prayer for relief Plaintiff sets forth in the Complaint before the Court
includes a "judgment against the Defendant in the sum of $150,000" and "removal of the
Plaintiff's information from CONNX" (NYSCEF Doc. No. 2, at 3).
1 O. Where, as here, a certificate to operate a foster home is revoked, 18
NYCRR 443.11 (entitled "Nonrenewal or revocation of a certificate or letter of approval")
is the application provision of law.
11. 18 NYCRR 443.11 does not afford an individual a right to a fair hearing.
12. During the course of this litigation, on or about August 22, 2023, Plaintiff
provided an audio recording that he asserted was from a conversation with a
2
2 of 3
FILED: JEFFERSON COUNTY CLERK 10/19/2023 06:01 PM INDEX NO. EF2023-00002318
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 10/19/2023
representative of CHJC. In a subsequent August 23, 2023 email, Plaintiff explained:
"The recording date was in Feb. of 2021...But, as you can see: Murray and I spoke[.]"
13. I reviewed the audio recording. Said audio recording, in relevant part,
includes an admission from Plaintiff that he is not entitled to a fair hearing. Specifically,
the audio recording states on this point: "I'm just looking something up real quick...
Ok. Under section 443.11 of [NYCRR] you are entitled to a meeting with the
representative of this agency if you have any questions regarding a closed home."
14. After further discussion regarding a right to a fair hearing, Plaintiff states
on the provided audio recording: "I completely understand the law is the law and you
are absolutely right. I'm looking at 430.1111 right now. So everything you said was right
on the money."
15. For the foregoing reasons, and for the reasons set forth in the
accompanying Supplemental Memorandum of Law, I submit that the applicable law
does not afford Plaintiff a right to fair hearing in this circumstance, and request that the
Court grant Defendant's motion to dismiss in the entirety and with prejudice.
Dated: October I 1, 2023 BOND, SCHOENECK & KING, PLLC
-„„, Richard L. Weber
Attorneys for Defendant Children's
Home of Jefferson County
One Lincoln Center
Syracuse, New York 13202
Tel.: 315-218-8375
Email: rweber@bsk.com
3
3 of 3
Document Filed Date
October 19, 2023
Case Filing Date
June 08, 2023
Category
Torts - Other (Neg, Def, Prima Facie Tor)
For full print and download access, please subscribe at https://www.trellis.law/.
Preview
FILED: JEFFERSON COUNTY CLERK 10/19/2023 06:01 PM INDEX NO. EF2023-00002318 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 10/19/2023 SUPREME COURT OF STATE OF NEW YORK COUTY OF JEFFERSON In the Matter of the application of: MICHAEL PAUL MCWILLIAMS, SUPPLEMENTAL ATTORNEY AFFIRMATION OF RICHARD L. WEBER, ESQ. Plaintiff-Petitioner, Case No.: v. EF2023-00002318 CHILDREN'S HOME OF JEFFERSON COUNTY, Defendant-Respondent. RICHARD L. WEBER, ESQ., being under penalty of perjury, states as follows: 1. I am an attorney, duly licensed to practice law in the State of New York and I am a member of the law firm Bond, Schoeneck & King, PLLC ("Bond"), attorneys for Defendant Children's Home of Jefferson County ("Defendant"). 2. I make this Supplemental Attorney Affirmation in further support of Defendant's CPLR 3211 motion to dismiss the "Verified Complaint" and action of Plaintiff Michael Paul McWilliams, and in response to a request of the Court (set forth in its Memorandum Decision and Order, dated September 14, 2023) for additional briefing on the motion. 3. The Summons and Complaint served upon Defendant are on the NYSCEF case docket at NYSCEF Doc. Nos. 1 and 2, and additionally, Doc. No. 6 (Exhibit A to my attorney affirmation (NYSCEF Doc. No. 5)). 4. Defendant filed its motion to dismiss the Complaint (see generally NYSCEF Doc. Nos. 4-1 O). 1 1 of 3 FILED: JEFFERSON COUNTY CLERK 10/19/2023 06:01 PM INDEX NO. EF2023-00002318 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 10/19/2023 5. Plaintiff opposed the motion to dismiss (see generally NYSCEF Doc. Nos. 23-24). 6. In reply, I submitted an additional Attorney Affirmation and Memorandum of Law (NYSCEF Doc. Nos. 25-26). 7. Oral argument was had on the motion on August 23, 2024, after which The Court issued its Memorandum Decision and Order which, inter alia, requested additional briefing on "the narrow issue of whether [Defendant] is a 'sponsoring [social services] agency' or otherwise held the authority of the applicable 'sponsoring [social services] agency' within the meaning of 18 NYC RR 358-1.1 (f) (10)" (NYCEF Doc. No. 27 at p 3). 8. There is no allegation set forth in the Complaint alleging the "denial" of a "right" to hearing. The closest Plaintiff comes to making such an allegation is to allege that Plaintiff "suggested [to a former CHJC employee] an Administrative Hearing to challenge the Defendant" (NYSCEF Doc. No. 2, 7 12). 9. The prayer for relief Plaintiff sets forth in the Complaint before the Court includes a "judgment against the Defendant in the sum of $150,000" and "removal of the Plaintiff's information from CONNX" (NYSCEF Doc. No. 2, at 3). 1 O. Where, as here, a certificate to operate a foster home is revoked, 18 NYCRR 443.11 (entitled "Nonrenewal or revocation of a certificate or letter of approval") is the application provision of law. 11. 18 NYCRR 443.11 does not afford an individual a right to a fair hearing. 12. During the course of this litigation, on or about August 22, 2023, Plaintiff provided an audio recording that he asserted was from a conversation with a 2 2 of 3 FILED: JEFFERSON COUNTY CLERK 10/19/2023 06:01 PM INDEX NO. EF2023-00002318 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 10/19/2023 representative of CHJC. In a subsequent August 23, 2023 email, Plaintiff explained: "The recording date was in Feb. of 2021...But, as you can see: Murray and I spoke[.]" 13. I reviewed the audio recording. Said audio recording, in relevant part, includes an admission from Plaintiff that he is not entitled to a fair hearing. Specifically, the audio recording states on this point: "I'm just looking something up real quick... Ok. Under section 443.11 of [NYCRR] you are entitled to a meeting with the representative of this agency if you have any questions regarding a closed home." 14. After further discussion regarding a right to a fair hearing, Plaintiff states on the provided audio recording: "I completely understand the law is the law and you are absolutely right. I'm looking at 430.1111 right now. So everything you said was right on the money." 15. For the foregoing reasons, and for the reasons set forth in the accompanying Supplemental Memorandum of Law, I submit that the applicable law does not afford Plaintiff a right to fair hearing in this circumstance, and request that the Court grant Defendant's motion to dismiss in the entirety and with prejudice. Dated: October I 1, 2023 BOND, SCHOENECK & KING, PLLC -„„, Richard L. Weber Attorneys for Defendant Children's Home of Jefferson County One Lincoln Center Syracuse, New York 13202 Tel.: 315-218-8375 Email: rweber@bsk.com 3 3 of 3