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DECARLO v. PERALES

May 2, 1997

JUANITA DeCARLO and VITO DeCARLO, Plaintiffs,
v.
CESAR PERALES, Commissioner, New York State Department of Social Services; RICHARD DuROSE, Commissioner of Social Services of Oneida County; and JACQUELINE TURNER, Individually, and in her official capacity as Supervisor of Day Care Unit, Defendants.



The opinion of the court was delivered by: HURD

 I. INTRODUCTION

 Plaintiffs filed the instant civil rights action pro se on April 4, 1989. Thereafter plaintiffs' court appointed counsel filed an amended complaint. The defendants *fn1" denied the material allegations of the amended complaint. A jury trial on the allegations against defendants Jacqueline Turner ("Turner") and Commissioner Richard DuRose ("Commissioner DuRose") was held from January 13, 1997, through January 16, 1997, in Utica, New York. The bench trial against defendant Commissioner Cesar Perales ("Commissioner Perales") was concurrently tried, with the jury acting in an advisory capacity as to the claims against him.

 The jury found no cause of action in favor of Turner. The jury further found against Commissioner DuRose in his official capacity as Commissioner of Social Services of Oneida County, and found damages of Three Hundred Thousand Dollars ($ 300,000) in favor of plaintiff Juanita DeCarlo ("Mrs. DeCarlo"). Findings of Fact and Conclusions of Law were made against Commissioner Perales in his official capacity as New York State Commissioner of Social Services, declaring that he had violated the plaintiffs' constitutional rights. *fn2" Judgment was entered by the clerk on the results of both the jury and bench trials.

 Presently before the court are post-trial motions by Commissioners Perales and DuRose. Oral arguments were heard on March 13, 1997. At that time the motions were denied with a written decision to follow.

 A. Background Facts

 Only those facts necessary to an understanding of the resolution of these motions will be recited. Mrs. DeCarlo was a child day care provider certified by Oneida County Department of Social Services ("County Social Services"). She resides with her husband, plaintiff Vito DeCarlo ("Mr. DeCarlo"). In late July of 1985 a call was made to the child abuse hotline maintained by the New York State Department of Social Services ("State Social Services") implicating the DeCarlos in the sexual abuse of a child, a charge which was later found to be false. The DeCarlos were immediately listed on the state Central Registry as implicated in child sexual abuse.

 County Social Services did an investigation which resulted in an "indicated" finding, meaning that there was some credible evidence of abuse. *fn3" Based upon the indicated finding, County Social Services revoked Mrs. DeCarlo's child day care certification. Without that certification she could not care for more than two children in her home. A hearing was scheduled for December 9, 1985, regarding the certification revocation. At the hearing, the DeCarlos attempted to have the expungement of their listing on the Central Registry considered, but this request was rejected by the Administrative Law Judge ("ALJ"). On April 6, 1986, the ALJ upheld the revocation of Mrs. DeCarlo's child day care certification. The DeCarlos filed an Article 78 proceeding in state court in an attempt to obtain reversal of the revocation.

 During 1987, the DeCarlos' Article 78 action had proceeded, and the New York State Supreme Court Appellate Division, Third Department, found that the revocation of Mrs. DeCarlo's child day care certification was proper because of the indicated finding on the Central Registry. See DeCarlo v. Perales, 131 A.D.2d 31, 520 N.Y.S.2d 267 (3d Dep't October 15, 1987).

 Simultaneously, the DeCarlos pursued expungement of their names from the Central Registry as child sexual abusers. Finally, on May 11, 1987, one year and ten months after the initial listing, Mrs. DeCarlo's name, as a child sexual abuser, was expunged from the Central Registry by the State Social Services. However, her name remained as being in a household with a child sexual abuser, to wit: her husband, because his expungement application was denied. Mr. DeCarlo requested a hearing on the denial. A hearing before the same ALJ began on October 26, 1987, but was adjourned so that Mr. DeCarlo and the person who had made the original accusations could take lie detector tests. *fn4" The hearing reconvened on January 7, 1988. In September 1988, fully three years and two months after the initial finding, the ALJ ordered the State Social Services, under Commissioner Perales, to expunge the indicated finding from the Central Registry with regard to Mr. DeCarlo, finding that there was no credible evidence against him regarding child sexual abuse.

 In October 1988, after the expungement of her husband's name from the Central Registry and complete vindication for both of them, Mrs. DeCarlo applied to the County Social Services for certification or recertification as a child day care provider. Mrs. DeCarlo met all criteria necessary for certification. However, County Social Services apparently felt that the Appellate Division case upholding the revocation and the subsequent expungement of the DeCarlos from the Central Registry were inconsistent. Therefore, Commissioner DuRose's department never acted upon Mrs. DeCarlo's application. This action followed.

 B. Motions

 Commissioner Perales moves the court to amend its judgment pursuant to Federal Rule of Civil Procedure 52(b), based upon the Eleventh Amendment to the United States Constitution. Commissioner DuRose brings a motion for judgment as a matter of law, for a new trial or for ...


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