Civil Court of the City of New York, Bronx County, June 11, 2021

Jennifer Oh for New York City Administration for Children's Services, nonparty.

J.A.K., the petitioner in this proceeding,^[FN1] commenced this Housing Part (HP) action alleging, inter alia, that V.M., the respondent in this proceeding, harassed her with the intent to cause her to vacate her apartment by, among other things, making unfounded allegations to the New York City Administration for Children's Services (ACS).

On or about April 9, 2021, petitioner submitted a subpoena duces tecum for signature by the undersigned. The subpoena, directed at ACS, seeks the "date, accusation and outcome of all cases for J.A.K. . . . between November 2019 and March 2021." This court, being aware of provisions of the Social Services Law, limited the request to the production of these records if petitioner was the subject of any complaints made to the agency.

In response to the subpoena, ACS moves to quash the subpoena based on its interpretation of provisions of Social Services Law § 422. Argument on the motion was heard on June 8, 2021.^[FN2]

ACS first argues that the subpoena must be quashed because the agency did not receive notice required under CPLR 2307 (unless the court orders otherwise, a motion for such subpoena upon a library, or a department or bureau of a municipal corporation or of the state, or an officer thereof shall be made on at least one day's notice).

However, the failure to provide such notice is not a sufficient reason to quash the subpoena, at least under the circumstances presented here (see People v Simone, 92 Misc 2d 306, 310 [Sup{**72 Misc 3d at 745}Ct, Bronx County 1977] ["The authorities do not deem the failure to give such one day's notice as sufficient to deny the relief requested nor does it constitute a ground to quash the subpoena; and other experts view the notice requirement as 'out-of-date and unnecessary' and is frequently ignored" (citations omitted)], affd 71 AD2d 554 [1st Dept 1979]).

And, even if failure to give one day's notice renders the subpoena defective, since ACS and petitioner have now addressed the merits of the subpoena in the motion to quash, and have argued the merits, the court feels that the motion to quash should be decided on the merits, rather than require petitioner to comply with CPLR 2307^[FN3] (People v Seeley, 179 Misc 2d 42, 46 n 4 [Sup Ct, Kings County 1998]). The court bears in mind petitioner is an unrepresented litigant who was likely unfamiliar with the requirements of CPLR 2307. Taking this into account, for the court to require unrepresented litigants in this high-volume court, where many litigants remain unrepresented, to make motions prior to the issuance of subpoenas directed at agencies like the New York City Department of Housing Preservation and Development, the New York State Division of Homes and Community Renewal, and the Department of Social Services/Human Resources Administration does little to advance these proceedings' summary nature.

Next, the court turns to whether provisions of Social Services Law § 422 allow disclosure of the requested information. It is evident that the petitioner intends to offer ACS records into evidence to prove that respondent has made unfounded complaints to the agency in his alleged attempt to cause petitioner to vacate the subject premises.

In New York, a Statewide Central Register of Child Abuse and Maltreatment (SCR) receives reports of suspected child abuse or neglect which are then shared with local social services departments for investigation and, if necessary, appropriate action. If an indication of abuse or neglect is present, the law requires SCR to refer the case for action by the appropriate agency and then to maintain the records until 10 years after the youngest child named in the report turns 18 (see Social Services Law § 422 [6]). If an investigation reveals no credible evidence to support the allegations, the report is classified as{**72 Misc 3d at 746} "unfounded" and the records sealed (see Social Services Law § 422 [5]).

Normally an "unfounded" report of child abuse or maltreatment is inadmissible as evidence (see Social Services Law § 422 [5]; People v LV, 182 Misc 2d 912, 914 [Sup Ct, Rensselaer County 1999] ["(s)o great is this mandate that the Legislature has severely [*3]circumscribed the conditions under which such a report may be unsealed"]). However, as ACS acknowledges, there are exceptions to the general rule provided in the statute (see Social Services Law § 422 [4] [A] [a]-[aa]; see also Bibbins v Sayegh, 46 Misc 3d 519 [Sup Ct, Westchester County 2014]).

Petitioner, being the subject of the report(s), is among those entitled to the records she seeks (see Social Services Law § 422 [4] [A] [d]). Indeed, ACS acknowledges that petitioner is "legally entitled to receive copies of the unfounded reports pursuant to NY [Social Services Law] § 422(5)(a)(iv)," but argues that the court and respondent are not entitled to them pursuant to Social Services Law § 422 (5) (a).

However, there is no basis for ACS's position based on the plain reading of the law. Social Services Law § 422 (5) (b) states in relevant part,

"Notwithstanding . . . any other provision of law to the contrary, an unfounded report shall not be admissible in any judicial or administrative proceeding or action; provided, however, an unfounded report may be introduced into evidence: (i) by the subject of the report where such subject . . . is a plaintiff or petitioner in a civil action or proceeding alleging the false reporting of child abuse or maltreatment" (emphasis added).

Since petitioner is the acknowledged subject of the reports made to ACS and she is the petitioner in this civil proceeding, she is entitled to receive the information requested and to offer it into evidence in support of her claim.

ACS submits that New York courts have already "determined which civil actions are appropriate for the redisclosure and admissibility of unfounded records [sic] pursuant to [Social Services Law] § 422(5)(b)," citing to five non-Housing Court matters.^[FN4] From these cases, ACS concludes "New York Courts have not found civil actions based merely on a petitioner's allegation of false reporting of child abuse and maltreatment in{**72 Misc 3d at 747} Housing Court action appropriate as a threshold matter" (emphasis added).

ACS essentially argues that because this matter is pending in Housing Court, the exceptions contained in Social Services Law § 422 (5) (b) do not apply.

However, none of the cases relied upon by ACS stand for this proposition. While the use of unfounded reports in a Housing Court proceeding may be an issue of first impression, or at least has not been reported in a published decision, Social Services Law § 422 (5) (b) contains no limitations that apply specifically to Housing Court (or any other court). Nor is there a reasonable policy argument against using the reports in a Housing Court harassment proceeding, while allowing their use in defamation cases, intentional infliction of emotional distress cases, and other matters.

Based on the foregoing, ACS's motion seeking to quash petitioner's subpoena, which seeks production of records kept by the agency, is denied. ACS is ordered to comply with the subpoena and produce the records sought no later than June 21, 2021.^[FN5]