Motion-Secondary: Hope Day Care, Llc, Theresa Giles as Manager of Hope Day Care, LLC, Tiara Love as Director of Hope Day Care, LLC v. New York State Office Of Children & Family Services Division Of Child Care Services

On August 25, 2017 a Motion-Secondary was filed involving a dispute between Hope Day Care, Llc, Theresa Giles As Manager Of Hope Day Care, Llc, Theresa Giles As Manager Of Hope Day Care, Llc, Tiara Love As Director Of Hope Day Care, Llc, Tiara Love As Director Of Hope Day Care, Llc, and New York State Office Of Children & Family Services Division Of Child Care Services, for Special Proceedings - CPLR Article 78 in the District Court of Onondaga County.

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SUPREME COURT
STATE OF NEW YORK COUNTY OF ONONDAGA
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HOPE DAY CARE, LLC, THERESA GILES, AS
MANAGER OF HOPE DAY CARE, LLC, AND
TIARA LOVE, AS DIRECTOR OF HOPE DAY
CARE, LLC,
Petitioner,
v. Index No.: 3975/2017
RJI: 33-17-2786
NEW YORK STATE OFFICE OF CHILDREN & Hon. Anthony J. Paris
FAMILY SERVICES DIVISION OF CHILD CARE
SERVICES,

Respondent.
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MEMORANDUM OF LAW

ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for Defendant
New York State Office of the
Attorney General
615 Erie Blvd. West, Suite 102
Syracuse, New York 13204
Telephone: (315) 448-4800

BONNIE GAIL LEVY
Assistant Attorney General, of Counsel

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TABLE OF CONTENTS

Preliminary Statement……………………………………………………………………………..1
Statement of Facts………………………………………………………………………….……...1
Arguments…………………………...…………………………………………………………….2
A. The Decision to Revoke Petitioner’s License was Supported by Substantial
Evidence, and Was Not Arbitrary and Capricious. However, if this Court
Finds there are Issues as to Substantial Evidence, this Proceeding must be
Transferred to the Appellate Division……………………………………………...2
B. The Punishment of Revocation of the Petitioner’s License does Not Shock
the Conscience and Should Not be Overturned…………………………………...5
C. Some of Petitioner’s Statements and Exhibits in its Petition Should not be
Considered by this Court, as they were not Raised Below in the
Administrative Hearing and/or they are Irrelevant to the Issues in this
Case…………………………………………………………………………….....8
Conclusion……………………………...…………………………………………………………9

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TABLE OF AUTHORITIES

CASES
300 Gramatan Ave. Assoc. v. State Division of Human Rights, 45 N.Y.2d 176, 180 (1978)........ 2
Berenhaus v. Ward, 70 N.Y.2d 436, 443-444 (1987) ..................................................................... 2
Briggs v. New York State Office of Children and Family Services, 142 A.D. 3d 1284 ................ 6
Clarke v. New York State Office of Children and Family Services, 91 A.D. 3d 489 (1st Dept.
2012).
Featherstone v. Franco, 95 N.Y.2d 550, 554-555 (2000) .............................................................. .8
Frye v. Kaladjian, 209 A.D.2d 787 (3rd Dept. 1994) ...................................................................... 6
Fundergurg v. New York State Office of Children and Family Services, 148 A.D. 3d 1667...4,6,7
Grady v. New York State Office of Children and Family Services, 39 A.D.3d 1157 ................. 5,7
Heinlein v. New York State Office of Children and Family Services, 60 A.D.3d 1492 (4th Dept.
2009) ........................................................................................................................................... 5
Kelly v. Safir, 96 N.Y.2d 32, 38 .................................................................................................. 5,8
Lewis v. New York State Office of Children and Family Services, 114 A.D. 3d 1065 ................. 5
Miller v. DeBuono, 90 N.Y.2d 783, 793 (1997) ............................................................................. 2
Nehorayoff v. Mills, 95 N.Y.2d 671, 675 (2001) ........................................................................... 2
O’Rourke v. Kirby, 54 N.Y. 2d 8, 14 (1981) .................................................................................. 2
Pascazi v. NYS Board of Law Examiners, 151 A.D.3d 1324, 1326 (2017) ................................... 8
Pell v. Bd. Of Education, 34 N.Y. 2d 222, 231 (1974) ................................................................ 2,5
Rembert v. Perales, 187 A.D. 2d 784 (3rd Dept. 1992) ................................................................... 6
Rodriguez v. Goord, 260 A.D.2d 736 (3rd Dept. 1999) .................................................................. 4
Schultz v. Tonawanda Housing Authority, 79 A.D. 2d 843 (4th Dept. 1980) ................................ 4
Ridge Road Fire Dist. V. Schiano, 16 N.Y.3d 494, 500 (2011) ..................................................... 2
Sindone-Thompson v. New York State Office of Children and Family Services, 296 A.D.2d 776
(3rd Dept. 2002) ........................................................................................................................... 6
Tender Learning Care v. State of New York Office of Children and Family Services, 96 A.D.3d
1255............................................................................................................................................. 6
STATUTES
18 NYCRR 418-1.15(c)(28) ........................................................................................................... 1
CPLR § 7803(g) .............................................................................................................................. 4
Social Services Law § 390 (10) ................................................................................................... 2,9

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PRELIMINARY STATEMENT

Respondent, New York State Office of Children & Family Services Division of Child Care

Services (“Respondent’) submits this Memorandum of Law in opposition to Petitioner’s Petition

for Article 78 relief. The Petition seeks to overturn a Decision After Hearing, by Richard Davidson,

Bureau of Special Hearings, dated May 18, 2017, which revoked the license to operate Hope Day

Care Center.

STATEMENT OF FACTS

The facts are set forth in great detail in the Answer and Return and the same are

incorporated herein by reference.

A brief history of the background of the proceeding herein is that Petitioner violated

various regulations governing the operation of a day care center, including but not limited to,

failing to have liability insurance, as required by 18 NYCRR 418-1.15(c)(28), from June 4, 2015,

less than two months after Petitioner had opened its facility, until January 26, 2017. Petitioner

was untruthful with the Respondent as to her failure to have insurance coverage. Additionally,

Petitioner violated various other regulations governing day care centers, by placing three different

children in age inappropriate classrooms and by not have a belt securing one child in a high chair.

Further, Petitioner had a history of over 160 violations of day care regulations.

After receiving a letter from the Respondent, advising Petitioner that it intended to revoke

Petitioner’s day care license, Petitioner requested a hearing on the matter. A hearing was held and

a decision was issued by the Administrative Law Judge affirming the Respondent’s proposal to

revoke Petitioner’s license. This proceeding was filed and served shortly after the issuance of the

decision.

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ARGUMENTS

A. THE DECISION TO REVOKE PETITIONER’S LICENSE WAS
SUPPORTED BY SUBSTANTIAL EVIDENCE, AND WAS NOT
ARBITRARY AND CAPRICIOUS. HOWEVER, IF THIS COURT
FINDS THERE ARE ISSUES AS TO SUBSTANTIAL EVIDENCE,
THIS PROCEEDING MUST BE TRANSFERRED TO THE
APPELLATE DIVISION

Judicial review of an administrative hearing is limited to whether the challenged

determination was “arbitrary and capricious” or otherwise “unsupported by substantial evidence”

O’Rourke v. Kirby, 54 N.Y. 2d 8, 14 (1981); Pell v. Bd. Of Education, 34 N.Y. 2d 222, 231 (1974).

An agency action is “arbitrary and capricious” if it is taken “without sound basis in reason and

without regard to the facts.” Pell, supra at 231. As long as there exists any “rational basis” for the

agency action, then the challenged action is not “arbitrary and capricious” and the reviewing court

may not re-weigh the evidence or substitute its judgment for that of the agency, and must

accordingly, deny the Article 78 Petition. Nehorayoff v. Mills, 95 N.Y.2d 671, 675 (2001); Pell,

supra at 231.

The “substantial evidence” standard “demands only that a given inference is reasonable

and plausible, not necessarily the most probable.” Miller v. DeBuono, 90 N.Y.2d 783, 793 (1997);

300 Gramatan Ave. Assoc. v. State Division of Human Rights, 45 N.Y.2d 176, 180 (1978). An

administrative finding is supported by substantial evidence, so long as there was relevant proof

that a reasonable mind might accept as adequate to support it. 300 Gramatan, supra at 180. A court

may not re-evaluate the evidence or reject the conclusion drawn by an administrative agency, even

if there was evidence in the record supporting a contrary determination. See Ridge Road Fire Dist.

V. Schiano, 16 N.Y.3d 494, 500 (2011); Berenhaus v. Ward, 70 N.Y.2d 436, 443-444 (1987).

Social Services Law § 390 (10) provides:

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“Any home or facility providing day care shall be operated in accordance

with applicable statutes and regulations. Any violation of applicable statutes

or regulations shall be a basis to deny, limit, suspend, revoke or terminate a

license or registration.”

Not only did the Respondent introduce evidence at the hearing of Petitioner’s violations of

numerous regulations governing the operation of day care centers, Giles, the operator/owner of the

center, admitted that Petitioner violated the various day care regulations that the Administrative

Law Judge (ALJ) found Petitioner violated. Those violations consisted of not having liability

insurance for over 1½ years, not having various children in age appropriate classrooms and having

a child in a high chair without a fastened harness. Additionally, evidence was introduced that

Petitioner had a history of violating the regulations governing day care centers and had in fact

violated various regulations governing day care centers over 160 times. Thus, there was

substantial evidence for the ALJ’s finding that Petitioner violated various day care regulations.

Given that substantial evidence existed to support the finding that Petitioner violated

various regulations concerning the operation of day care centers, and given the broad provisions

of the Social Services Law, cited above, to impose penalties, the ALJ’s determination to revoke

Petitioner’s day care license, was supported by substantial evidence and was not arbitrary and

capricious. This is especially true given the nature of the violations, which consisted of:

1. Petitioner’s failure to have to have liability insurance from close to its

inception until after the hearing was scheduled in this matter, a period of

time of over 1½ years;

2. Petitioner’s deliberate untruthfulness to Respondent about not having

liability insurance when asked;

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3. Petitioner’s failure to have a valid reason for not having liability insurance;

4. Petitioner’s failure to obtain liability insurance for over two months after

the issue arose;

5. Petitioner’s placing three children in age inappropriate classrooms and

being aware they were in age inappropriate classrooms and that this was

against the regulations;

6. Petitioner’s failure to have a child fastened with a harness while in a high

chair; and

7. Petitioner’s violation of day care regulations in excess of 160 times, in the

less than two years of its existence, often re-committing the same violations.

For all these reasons, the decision which held Petitioner violated various day care

regulations, and the decision to revoke Petitioner’s license, was supported by substantial evidence

and was not arbitrary and capricious.

If this court believes an issue of substantial evidence exists, itis mandatory that this

proceeding be transferred to the Appellate Division, even if other issues are raised. See CPLR §

7803(g); Matter of Rodriguez v. Goord, 260 A.D.2d 736 (3rd Dept. 1999), lv. denied, 93

N.Y.2d 818(1999); Matter of Schultz v. Tonawanda Housing Authority, 79 A.D. 2d 843 (4th Dept.

1980).

However, the Appellate Division, Fourth Department, which would receive this case upon

transfer, has held in Fundergurg v. New York State Office of Children and Family Services, 148

A.D. 3d 1667 (4th Dept. 2017), that when the Petitioner challenges only the penalty in a case such

as this and does not raise a substantial evidence issue, it is an error to transfer the Petition to them

for a decision.

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B. THE PUNISHMENT OF REVOCATION OF THE PETIONER’S
LICENSE DOES NOT SHOCK THE CONSCIENCE AND SHOULD
NOT BE OVERTURNED

In this case, Petitioner’s license was revoked after an Administrative Hearing was held and

it was determined that Petitioner violated numerous regulations governing day care centers.

“An administrative penalty will be upheld, unless it is so disproportionate to the offense as

to be shocking to one’s sense of fairness, thus constituting an abuse of discretion as a matter of

law.” Pell, supra; Matter of Kelly v. Safir, 96 N.Y.2d 32, 38; rearg. denied, 96 N.Y.2d 854 (2001);

Fundergurg, supra.

Petitioner cites to In the Matter of Grady v. New York State Office of Children and Family

Services, 39 A.D.3d 1157 (4th Dept. 2007), to support its contention the revocation of the day care

license in this case is too harsh a penalty, given the circumstances.

The court in the Grady case overturned the penalty of revocation of a day care center license

based upon a day care provider having more than the allowed number of children in her center on

two different dates. The Court ruled that the violation of the regulations by Grady was due to

unexpected circumstances, not of her making, and there was no risk of significant harm to the

children. Additionally, Grady had no noted history of violations. In the Matter of Lewis v. New

York State Office of Children and Family Services, 114 A.D. 3d 1065 (3rd Dept. 2014), the Court

overturned the penalty of revocation, based upon two children being unsupervised on the day care

center’s porch for 20-30 minutes. The Court found that the two children had unexpectedly walked

to the day care provider’s house, instead of meeting a substitute provider at their school. The Court

found that the children were not put in danger by the incident. The Court also found that the center

had an “otherwise unblemished record.” Lewis at 1068. See also, Heinlein v. New York State

Office of Children and Family Services, 60 A.D.3d 1492 (4th Dept. 2009).

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The Courts have upheld the revocation of a day care center’s license when the violations

do not consist of unanticipated circumstances not of the provider’s making. In the case of Matter

of Briggs v. New York State Office of Children and Family Services, 142 A.D. 3d 1284 (4th Dept.

2016), the provider isolated a child outside her home where the child could not be supervised. The

Court in Briggs upheld the revocation of the day care license on the basis that that the Petitioner

had not been faced with unanticipated circumstances, not of her own making, to which she

responded appropriately, but rather Petitioner created the circumstances that exposed the child to

significant harm. Briggs at 1285. In Fundergurg, supra, the Court upheld revocation of the day

care’s license, after the provider transported twelve children to her day care in a van capable of

holding only seven, with many of the children unbelted. The Court held that the violations were

not due to unanticipated circumstances and they constituted a huge safety hazard. Fundergurg,

supra. In the Matter of Tender Learning Care v. State of New York Office of Children and Family

Services, 96 A.D.3d 1255 (3rd Dept. 2012), the Court upheld the revocation of a day care’s license

based upon the provider’s failure to keep the building temperature at 68 degrees, caring for school-

aged children when she was not licensed to do so, transporting a child without a seat belt, failing

to maintain a proper child to staff ration and failing to have qualified staff. See also, Matter of

Clarke v. New York State Office of Children and Family Services, 91 A.D. 3d 489 (1st Dept. 2012)

(violations for not having enough caregivers and denial of inspector access); Matter of Sindone-

Thompson v. New York State Office of Children and Family Services, 296 A.D.2d 776 (3rd Dept.

2002) (child left unattended in car during winter); Frye v. Kaladjian, 209 A.D.2d 787 (3rd Dept.

1994) (violations for too many children, unqualified staff, failure to turn over records to DSS

inspectors and lack of fire drills); Rembert v. Perales, 187 A.D. 2d 784 (3rd Dept. 1992) (too many

children and lack of qualified staff).

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In this case, unlike in the Grady case, the Petitioner caused the conditions for which her

license was revoked and said conditions were not caused by unanticipated circumstances not of

Petitioner’s making. Further, it does not appear in this case that there were any mitigating

circumstances which would render the penalty of revocation shocking to one’s sense of fairness.

See Fundergurg, supra. The violations committed by Petitioner in this case were also more serious

than those in the Grady case. Additionally, Petitioner had an extensive history of violating day

care regulations.

Based upon the Decision of the Administrative Law Judge, and the Exhibits annexed to the

Answer, it is clear that the failure to obtain liability insurance by Petitioner was a deliberate and

intentional violation of the regulations governing day care centers. In fact, it is clear that Petitioner

deliberately chose not to obtain liability insurance and was deliberately deceptive about having the

same, from October 26, 2016-when the issue was raised by Respondent-until January 27, 2017,

when insurance was ultimately obtained. No legitimate reason has been provided by Petitioner for

the failure to obtain liability insurance, other than she had no money to obtain the insurance. These

actions show a deliberate decision by Petitioner to ignore or violate the rules regulating day care

centers, with respect to obtaining liability insurance, which in and of itself provides sufficient

justification for revocation of the day care license.

The failure of Petitioner to obtain insurance for over a year and one half, coupled with the

three other violations, which concerned the improper placement of three children in age

inappropriate classrooms, and the failure to have one child, who could not walk, fastened with a

safety belt, while in a high chair, clearly justified the revocation of Petitioner’s license due to its

failure to follow day care regulations. Had any of the children, who were the subject of the

violations of improper placement, or unfastened safety belt, been hurt, or had other children been

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hurt as a result of the improper placement of age inappropriate children in their room, or hurt for

any other reason, there would have been no liability insurance available to provide for

compensation to said children.

For all the reasons set forth above, it is respectfully requested that this Court dismiss the

Petition.

C. SOME OF PETITIONER’S STATEMENTS AND EXHIBITS, IN ITS
PETITION, SHOULD NOT BE CONSIDERED BY THIS COURT, AS
THEY WERE NOT RAISED BELOW IN THE ADMIMISTRATIVE
HEARING AND/OR THEY ARE IRRELEVANT TO THE ISSUES IN
THIS CASE

As set forth in the Answer and Return, Petitioner attempts in her Petition to introduce

evidence not introduced before the ALJ in the administrative proceeding.

This Court’s review is limited to what was considered at the administrative hearing. See

Matter of Featherstone v. Franco, 95 N.Y.2d 550, 554-555 (2000); Matter of Yabough v. Franco,

95 N.Y.2d 342, 347 (2000); Matter of Kelly v. Safir, 96 N.Y.2d 32, 40 (2001); rearg. denied, 96

N.Y.2d 854 (2001); Matter of Pascazi v. NYS Board of Law Examiners, 151 A.D.3d 1324, 1326

(2017).

The Court thus should not consider Exhibit E, annexed to the Petition, which was not before

the ALJ. Nor should the Court consider the various unsupported allegations as to who Hope Day

Care serves-that it provides daycare to poor, struggling families, and that Hope has been inspected

more than any other day care, as these issues were not raised before the ALJ at the hearing.

Additionally, vague allegations as to some unknown policy of OCFS with respect the

requirement for onsite visits should not be considered as this issue was not raised before the ALJ.

However, if the Court intends to consider such allegations, the Respondent asks this Court

to consider the Affidavit of Mark Demma, annexed to the Answer and Return, with respect to these

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issues, which clearly sets forth that there are 25 other day care providers who provide service in

the neighborhood where Hope exists. There are no requirements in either the Social Services Law,

the Day Care Regulations, or the OCFS Policies which are posted on the OCFS website, which

require the type of inspections Petitioner claims were not performed.

Additionally, while Petitioner refers to “surprise” visits in the Petition, Social Services Law

§ 390(3)(a) clearly allows for unannounced visits.

Additionally, whether or not Petitioner corrected the violations charged and finally

obtained liability insurance, after being in violation for over two years, is irrelevant, as the Social

Services Law § 390(10) provides:

“Any violation of applicable statutes or regulations shall be a basis to deny, limit, suspend,

revoke or terminate a license or registration.”

The issue of whether the violations were corrected is not listed as a consideration in Social

Services Law § 390(10).

For these reasons, the Court should not consider Exhibit E, annexed to the Petition, nor the

other unsupported allegations set forth in the Petition. Exhibit E, and testimony and proof of the

other allegations, was not introduced at the hearing that this Court is reviewing.

CONCLUSION

For all of the foregoing reasons, Respondent respectfully requests that the Court deny

Petitioner’s request to overturn the decision to revoke its license and dismiss the Petition in its

entirety and grant such other and further relief as the Court deems just and proper.

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WHEREFORE, Respondent respectfully requests judgment dismissing the Petition in its

entirety and such other and further relief as to the Court seems just and proper.

DATED: October 16, 2017
Syracuse, New York
ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Attorney for Respondents
BY: /s/ Bonnie G. Levy
BONNIE GAIL LEVY
Assistant Attorney General of Counsel
615 Erie Boulevard West, Suite 102
Syracuse, New York 13204
Telephone: (315) 448-4800

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Case Info

Judge

Anthony J Paris Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

October 17, 2017

Case Filing Date

August 25, 2017

County

Parties

Hope Day Care, LLC Plaintiff
LEVY, BONNIE GAIL Attorney for the Defendant
New York State Office of Children & Family Services Division of Child Care Services Defendant
SPRING, LAURA LEE Attorney for the Plaintiff
Theresa Giles as Manager of Hope Day Care, LLC Plaintiff
Theresa Giles as Manager of Hope Day Care, LLC Plaintiff
Tiara Love as Director of Hope Day Care, LLC Plaintiff
Tiara Love as Director of Hope Day Care, LLC Plaintiff
BONNIE LEVY Attorney
FRANCES FRIEDBERG Attorney
ELLEN WALKER Attorney
MARK DYER Attorney

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