Foster care case allowed as class action

By John Fulmer
Posted: 5:07 pm Thu, July 1, 2010

In a recent decision, the New York State Court of Appeals said developmentally disabled children in foster care may proceed as a class in their suit against the New York City Administration for Children’s Services and the State’s Office of Mental Retardation and Developmental Disabilities.

City of New York v. Maul is one of several decisions handed down this year that broaden the field for class action lawsuits. Two others — AT&T Mobility v. Concepcion and Rent-A-Center v. Jackson — dealt with freeing arbitration requirements in consumer and employee contracts and the ability to litigate disputes in class action lawsuits.

According to a June report by The National Law Journal, those two court actions have set the stage for a showdown between Congress, which currently tends to favor litigation in consumer and employee contracts, and the Supreme Court, which appears to be leaning toward arbitration in settling such disputes.

Catherine Williams and four other Patterson Belknap Webb & Tyler LLP attorneys in New York City worked pro bono for the plaintiffs in City of New York v. Maul. Their co-counselors are with New York Lawyers for the Public Interest and Lawyers for Children.

Williams said the case still is being litigated and that she could not comment, but her firm’s website states that Patterson Belknap has been involved since 2005, when they “first obtained permission to intervene in a suit between ACS and OMRDD over who has responsibility for providing services and housing to class members.”

The website also states that ACS and OMRDD’s failed to work together to identify and serve the children, which led to “the denial of necessary services to many children languishing in highly restrictive settings such as adult nursing homes and psychiatric hospitals as they await placement.

“ACS has argued at each stage of the litigation that its violation of state and federal laws protecting the rights of individuals with disabilities can never be litigated on a class-wide basis and can only be raised in individual Family Court proceedings — an argument that has finally been put to rest by the Court of Appeals’s decision,” according to the website.

Matthew Fusco, of ChamberlainD’Amanda, wrote in an e-mail that, “one of the issues in any class action, state or federal, is whether the individual’s situation — how their rights were violated and what injuries they suffered — predominate or whether it can be said that the whole class had their rights violated in the same way and suffered the same type of injury. … In a securities fraud case this is easily answered — the stock issuer told the same lie to everyone and all the stock holders suffered the same damages, that is, the loss in value of their stock.

“I would think it would be much harder to show that class issues predominate in a situation like [City of New York v. Maul] where you are talking about individual developmentally disabled kids and how they were treated by an agency. The plaintiff got around the damages problem by not seeking individual damages, but only injunctive relief.”

In the most recent decision, Court of Appeals Associate Judge Victoria A. Graffeo wrote that “the Appellate Division did not abuse its discretion in affirming a Supreme Court order granting class action certification under CPLR Article 9 to [the] plaintiffs, a group of developmentally disabled children and young adults who are or have been in New York City’s foster care system.”

The Appellate Division’s order was affirmed.