Order, Supreme Court, New York County (Marilyn Shafer, J.), entered May 1, 2008, which granted plaintiffs-intervenors' motion for class certification, and denied the motion of defendant-appellant New York City Administration for Childrens' Services for partial summary judgment, affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Lippman, P.J., Mazzarelli, Buckley, McGuire, DeGrasse, JJ.
Plaintiffs-intervenors are mentally retarded and developmentally disabled individuals. All of them are, or were, in the foster care system under the aegis of defendant Administration for Childrens' Services (ACS). Defendant New York State Office of Mental Retardation and Developmental Disabilities (OMRDD) has the responsibility, pursuant to the Mental Hygiene Law, to "assure the development of comprehensive plans, programs, and services in the areas of research, prevention, and care, treatment, habilitation, rehabilitation, vocational and other education, and training of persons with mental retardation and developmental disabilities" (Mental Hygiene Law § 13.07[a]). Plaintiffs claim that both ACS and OMRDD jointly failed to properly provide for their care.
ACS, plaintiffs contend, has no uniform policy for identifying individuals who are in need of OMRDD services, does not train its staff to recognize such individuals, and rarely coordinates with OMRDD in this regard, despite OMRDD's expertise in the area. Even when individuals are identified by ACS as needing services, plaintiffs claim that ACS often fails to refer them to OMRDD for further evaluation. When ACS does make a referral, plaintiffs assert that the referral information is often incomplete, resulting in OMRDD's rejection of the information packet and further delay in delivery of the services to which the applicant has already been found entitled. Plaintiffs claim that ACS' lackadaisical, ineffective methods are especially harmful to those persons close to aging out of the foster care system, since it significantly limits the time OMRDD has to develop an individual's placement plan.
Plaintiffs contend that OMRDD shares responsibility for the breakdown in providing appropriate care for mentally retarded and developmentally disabled individuals and independently fails to fulfill its statutory duties. For example, they claim that OMRDD categorically refuses to provide services, other than residential placement, to foster children, even though residential placement is just one of several services offered to similarly disabled children who are not in foster care. In addition, they claim that OMRDD will only accept placement referrals from ACS for those for whom the permanency planning goal is residential placement. Even then, plaintiffs assert that the waiting list for placement is unreasonably long and that people for whom immediate placement is particularly crucial are given no special consideration.
Some individuals, plaintiffs claim, have languished on OMRDD's wait list for as long as nine years without finding temporary placement. In those cases, ACS has placed mentally retarded and developmentally disabled people in facilities pending placement by OMRDD that are often unduly restrictive and highly inappropriate. Plaintiffs assert this is because ACS performs only cursory investigations into the quality of facilities. ACS also fails to communicate each person's specific needs to the facility's staff before the placement.
Plaintiffs allege that, other than themselves, there are at least 150 individuals who are adversely affected by these systemic failures. Accordingly, they sought class certification. Most of the people proposed for the class were those who have been found eligible for OMRDD services but who have been on a waiting list for an inordinate period of time. Plaintiffs also claim that relief is necessary for eligible individuals whom ACS has not yet referred to OMRDD and those whose referral was rejected by OMRDD because of a procedural defect in the referral packet prepared by ACS. Further, they wish to represent those who had aged out of the ACS system prior to placement and those who need services other than adult residential care but are not receiving such services from ACS or OMRDD.
The motion court certified the class and defined it as plaintiffs had proposed:
"Individuals with developmental disabilities who are in or have been in New York City Administration for Child[ren's] Services' (ACS's) care or custody and who, during their time in ACS's care or custody, have not received or did not receive services from ACS and the New York Office of Mental Retardation and Developmental Disabilities to which they were or are entitled."
CPLR 901(a) requires that to maintain an action on behalf of a class, it must be established that
"1. the class is so numerous that joinder of all members...is impracticable;
"2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members;
"3. the claims or defenses of the representative parties are typical of the claims or ...