                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 2, 2016                      521862
________________________________

In the Matter of Anonymous, an
   Intermediate Care Facility,
                    Petitioner,
      v                                     OPINION AND JUDGMENT

DAVID MOLIK et al.,
                    Respondents.
________________________________


Calendar Date:   April 27, 2016

Before:   Peters, P.J., Lahtinen, Garry and Mulvey, JJ.

                             __________


      Cappello & Linden, Potsdam (Roger B. Linden of counsel),
for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Treasure of counsel), for respondents.

                             __________


Peters, P.J.

      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Schenectady
County) to review a determination of respondent Justice Center
for the Protection of People with Special Needs denying
petitioner's request to amend and seal a report of neglect.

      Petitioner operates a 12-bed intermediate care facility in
the Village of Morristown, Schenectady County, which is licensed
by the Office of People With Developmental Disabilities
(hereinafter OPWDD) to provide services to individuals suffering
from various cognitive and physical disabilities. On the evening
of June 30, 2013, after two staff members momentarily left the
facility's common living room, one of the male residents of the
                              -2-                521862

facility (hereinafter resident 1) engaged in inappropriate sexual
contact with a female resident. As a result of the incident,
respondent Justice Center for the Protection of People With
Special Needs (hereinafter the Justice Center) investigated a
report of neglect against the two staff members. The Justice
Center ultimately found the allegations to be unsubstantiated,
reasoning that there were no policies or requirements in place
prohibiting staff from leaving the living room unattended while
residents were gathered there. However, because this was the
third time in the past six months that resident 1 had engaged in
inappropriate sexual contact with another resident, the Justice
Center "substantiated" a report of neglect against petitioner for
failing to provide clear protocols concerning staff supervision
of residents in the living room and failing to alter resident 1's
care plan to increase his level of supervision. Petitioner's
request to amend the report to unsubstantiated and seal it was
denied following an administrative hearing. Such determination
was adopted by the Director of the Justice Center's
Administrative Hearings Unit, who was designated by the Executive
Director to render a final determination.

      In this CPLR article 78 proceeding, petitioner seeks to
annul the Justice Center's determination on several grounds. We
agree that, under the circumstances presented herein, the Justice
Center acted in excess of its statutory authority in making a
finding of neglect against petitioner. Accordingly, we now annul
the determination.

      Recognizing a "need to strengthen and standardize the
safety net for [the more than one million] vulnerable persons,
adults and children alike, who are receiving care from New York's
human service agencies and programs," the Legislature in 2012
enacted the Protection of People With Special Needs Act (L 2012,
ch 501, § 1, part A, § 1; see Senate Introducer Mem in Support,
Bill Jacket, L 2012, ch 501 at 14; Sponsor's Mem, Bill Jacket, L
2012, ch 501 at 9). The Act establishes a set of uniform
safeguards applicable to all facilities and programs operated,
licensed or certified by six different state agencies, including
OPWDD, to serve individuals with cognitive or physical
disabilities (see L 2012, ch 501, § 1, part A, § 1). In order to
implement those safeguards, the Act created the Justice Center
                              -3-                521862

(see Executive Law §§ 551-562; Social Services Law §§ 488-497),
which is, among other things, charged with establishing and
maintaining a statewide central register – known as the
Vulnerable Persons' Central Register – to accept, investigate and
respond to allegations of abuse, neglect or other "reportable
incidents" of persons receiving services in licensed facilities
or provider agencies (see Executive Law § 553 [1]-[4]; Social
Services Law § 492).

      Upon receipt of an allegation of a reportable incident made
to the Vulnerable Persons' Central Register, the Justice Center
is responsible for providing notice to the applicable state
oversight agency and, as appropriate, the facility's director or
operator (see Social Services Law § 492 [3] [a], [c]; 14 NYCRR
624.5 [a] [1]; [c] [1]). The facility or provider agency is
required to investigate the allegation, unless OPWDD or the
Justice Center advise the operator of such facility that it will
investigate the incident and specifically relieves the facility
of its obligation to do so (see 14 NYCRR 624.5 [h] [1]; see also
Social Services Law § 488 [7]). Following the investigation, a
finding must be made, which shall be based upon a preponderance
of the evidence, indicating whether the allegation is
"substantiated" or "unsubstantiated" (Social Services Law § 493
[3] [a]; see 14 NYCRR 624.5 [j] [1] [i], [ii]). The statute
further provides, as particularly relevant here, that "[i]n
conjunction with the possible findings identified in [Social
Services Law § 493 (3) (a)], a concurrent finding may be made
that a systemic problem caused or contributed to the occurrence
of the incident" (Social Services Law § 493 [3] [b]; see 14 NYCRR
624.5 [j] [2]). Substantiated reports are divided into four
categories (category one, two, three and four) depending on the
nature and severity of the conduct, and each carries with it
different consequences (see Social Services Law § 493 [4]). When
the facility or OPWDD conducts an investigation, its findings are
not final until reviewed by the Justice Center (see 14 NYCRR
624.5 [j] [3]). Upon its review, the Justice Center may amend or
adopt the findings of the facility or OPWDD, and the Justice
Center's findings are considered final (see 14 NYCRR 624.5 [j]
[3]).
                              -4-                521862

      When a report of abuse or neglect is substantiated by the
Justice Center, the "subject" of the report has the right to
request an amendment of the report and, if the request is denied
in whole or in part, to a hearing before an Administrative Law
Judge to determine whether the findings of the report should be
amended (see Social Services Law § 494 [1] [a]; 14 NYCRR 700.4,
700.5, 700.6). At the hearing, the Justice Center bears the
burden of showing by a preponderance of the evidence that the
subject committed the acts giving rise to the report and that the
substantiated allegations constitute abuse or neglect (see 14
NYCRR 700.6 [b]). Following the hearing, the Administrative Law
Judge must issue a report and recommendation setting forth his or
her determination of the issues, as well as "the reasons and
factual basis for the determination" (14 NYCRR 700.12 [a]). The
report and recommendation is then reviewed by the Justice
Center's Executive Director or his or her designee, who shall
issue a final determination (see 14 NYCRR 700.13 [a]).

      With this statutory framework in mind, we address
petitioner's contention that the Justice Center lacked the
statutory authority to make a finding of neglect against it. In
so doing, we need not defer to the Justice Center's
interpretation of the statutory provisions in question, as we are
not called upon "to interpret a statute where 'specialized
knowledge and understanding of underlying operational practices
or . . . an evaluation of factual data and inferences to be drawn
therefrom' is at stake" (Roberts v Tishman Speyer Props., L.P.,
13 NY3d 270, 285 [2009], quoting Matter of KSLM-Columbus Apts.,
Inc. v New York State Div. of Hous. & Community Renewal, 5 NY3d
303, 312 [2005]; see Matter of Crucible Materials Corp. v New
York Power Auth., 13 NY3d 223, 229 [2009]). Rather, the issue
before us "is one of pure statutory interpretation dependent only
on accurate apprehension of legislative intent" (Matter of
KSLM-Columbus Apts., Inc. v New York State Div. of Hous. &
Community Renewal, 5 NY3d at 312 [internal quotation marks and
citation omitted]; see Matter of Ovadia v Office of the Indus.
Bd. of Appeals, 19 NY3d 138, 144 n 5 [2012]). In performing this
function, we are "constitutionally bound to give effect to the
expressed will of the Legislature and the plain and obvious
meaning of a statute is always preferred to any curious, narrow
or hidden sense that nothing but a strained interpretation of
                              -5-                521862

legislative intent would discern" (Finger Lakes Racing Assn. v
New York State Racing & Wagering Bd., 45 NY2d 471, 479-480
[1978]; see Matter of Suffolk Regional Off-Track Betting Corp. v
New York State Racing & Wagering Bd., 47 AD3d 133, 136 [2007],
affd 11 NY3d 559 [2008]).

      Social Services Law § 493 governs the findings that may be
made by the Justice Center following its investigation of a
report alleging abuse or neglect. It may "substantiate" a report
of abuse or neglect if "it is determined that the incident
occurred and the subject of the report was responsible or, if no
subject can be identified and an incident occurred, that[] the
facility or provider agency was responsible" (Social Services Law
§ 493 [3] [a] [i]). Conversely, a report of abuse or neglect is
unsubstantiated if "it is determined not to have occurred or the
subject of the report was not responsible, or because it cannot
be determined that the incident occurred or that the subject of
the report was responsible" (Social Services Law § 493 [3] [a]
[ii]). Thus, pursuant to Social Services Law § 493 (3) (a), the
only circumstance under which the Justice Center could
substantiate a report of neglect against a facility or provider
agency is where an incident of neglect has occurred but the
subject cannot be identified – a situation that is plainly not
present here.

      Despite this, respondents maintain that the Justice Center
was empowered to "substantiate" an allegation of neglect against
petitioner by virtue of its statutory authority to make a
concurrent finding under Social Services Law § 493 (3) (b). We
disagree. While the Justice Center is indeed permitted to make a
"concurrent finding" with respect to a facility or provider
agency in conjunction with either a substantiated or
unsubstantiated report, the scope of that "concurrent finding" is
expressly circumscribed by the statute. By its terms, the only
"concurrent finding" that may be made is "that a systemic problem
caused or contributed to the occurrence of the incident" (Social
Services Law § 493 [3] [b]). Had the Legislature intended to
authorize the Justice Center to make a concurrent finding of
neglect as against a facility or provider agency, it could have
expressly said so. Likewise, if it was the intent of the
Legislature to equate a finding "that a systemic problem caused
                              -6-                521862

or contributed to the occurrence of the incident" with a finding
of "neglect," it could have easily done so through use of the
term "neglect." It is axiomatic that "new language cannot be
imported into a statute to give it a meaning not otherwise found
therein" (McKinney's Cons Laws of NY, Book 1, Statutes § 94 at
190), nor can a court "amend a statute by inserting words that
are not there" (McKinney's Cons Laws of NY, Book 1, Statutes §
363 at 525). "The function of the courts is to enforce statutes,
not to usurp the power of legislation, and to interpret a statute
where there is no need for interpretation, to conjecture about or
to add to or to subtract from words having a definite meaning, or
to engraft exceptions where none exist are trespasses by a court
upon the legislative domain" (McKinney's Cons Laws of NY, Book 1,
Statutes § 76 at 168).

      Further grounding for our holding can be found in Social
Services Law § 493 (4). That provision requires that all
instances of neglect or abuse be categorized into one or more of
four enumerated categories. But categorization is predicated
upon the existence of a "[s]ubstantiated report[] of abuse or
neglect" (Social Services Law § 493 [4]). In other words, only a
substantiated report of neglect or abuse can be categorized.
Since the statute does not provide for categorization of a
"concurrent finding" into one of the four categories, it
necessarily follows that a "concurrent finding" cannot constitute
– nor be equated with – a finding of neglect. While the
Legislature may not have contemplated a scenario where, as here,
the Justice Center would find the subject of a report fully
absolved from responsibility while determining that the facility
engaged in conduct amounting to neglect,1 "'the plain language of


    1
        It is also possible that the Legislature simply did not
intend for the statute to apply where the purported neglect
related solely to systematic deficiencies within the facility.
OPWDD is statutorily charged with regulatory oversight over
facilities, like petitioner, under its auspices (see Mental
Hygiene Law § 16.00 et seq.). In that capacity, OPWDD is
authorized to, among other things, perform periodic reviews of a
service provider's procedures and conduct investigations into the
operations of any service provider, and may revoke, suspend or
                              -7-                  521862

a statute may not be overridden to avoid an undesirable result in
a particular situation'" (Matter of County of Albany v Hudson
Riv.-Black Riv. Regulating Dist., 97 AD3d 61, 73 [2012], lv
denied 19 NY3d 816 [2012], quoting McKinney's Cons Laws of NY,
Book 1, Statutes § 141, Comment at 283). As the Court of Appeals
has guided, where "the terms of a statute are plain and within
the scope of legislative power, . . . the remedy for a harsh law
is not in strained interpretation by the [J]udiciary, but rather
its amendment or repeal by the Legislature" (Finger Lakes Racing
Assn. v New York State Racing & Wagering Bd., 45 NY2d at 480).

      We therefore conclude that, under these circumstances, the
Justice Center was simply without authority to "substantiate" a
report of neglect against petitioner. Accordingly, the
determination must be annulled, the report of neglect amended to
unsubstantiated and sealed as it pertains to petitioner, and the
matter remitted to the Justice Center for further proceedings.
In light of our determination, petitioner's remaining contentions
are academic.

     Lahtinen, Garry and Mulvey, JJ., concur.


      ADJUDGED that the determination is annulled, without costs,
petition granted and matter remitted to respondent Justice Center
for the Protection of People With Special Needs for further
proceedings not inconsistent with this Court's decision.



                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court



limit a service provider's operating certificate or impose
penalties, including a fine, for failure to comply with the terms
of its operating certificate or with the provisions of any
applicable statute, rule or regulation (see Mental Hygiene Law
§§ 16.11, 16.17).
