NY Courts: Appellate Division Ruling Will Not Be Appealed: "He Has Decided Not to Pursue This Matter Any Further at This Point"

    LEDGEWOOD, NJ, July 28, 2013 /24-7PressRelease/ -- According to Court documents, Fechter commenced a CPLR Article 78 proceeding to review a determination, made after an alleged fair hearing, denying his request to amend an indicated report of maltreatment with respect to his daughter to an unfounded report, and to seal it ~ the matter was transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Niagara County [Ralph A. Boniello, III, J.] entered August 13, 2012 to review the determination of New York State Office of Children and Family Services.

The Court's review was " . . . limited to whether the determination was supported by substantial evidence in the record on the petitioner['s] application for expungement". The Court claims that "Upon conducting such a review, we conclude that the agency's determination is supported by substantial evidence...".

North Tonawanda Woman Stunned, Sees Injustice of Statewide Public Importance: Court relied on her case to support its decision

Fechter's case was brought to light when Rhonda Mangus of the City of North Tonawanda, New York, learned that the New York State Supreme Court, Appellate Division, Fourth Judicial Department, had relied on her case - Matter of Mangus v Niagara County Dept. of Social Servs., 68 AD3d 1774, 1774, lv denied 15 NY3d 705 - to support its decision of substantial evidence in the Matter of Fechter against NYS OCFS, et al.

Mangus said, "Both cases represent a social injustice and are of statewide public importance. A fair contextual reading and review of supporting evidence in both cases would compel contrary conclusions. The decisions are both arbitrary and capricious and the apparent rationale of the Appellate Court is that NYS OCFS and NCDSS need not comply with the Court of Appeals defined standard of substantial evidence."

Supporting Evidence

Holding personal knowledge of the facts surrounding Fechter's case, Mangus believes NYS OCFS and NCDSS failed to provide substantial evidence that Fechter maltreated his daughter. Likewise, in her own proceeding, the Court unanimously ignored supporting evidence that established there was no basis for an indicated report of 'Educational Neglect' against her, including supporting evidence"...that there was, not one but two, doctor's orders to keep the child out of school." The record is complete with medical references to keep the child from attending school." "At no time was the child kept out of school by the Appellant where there was no doctor's directive or instruction to do so. Simply, there is no evidence introduced by NDSS that either Doctor removed their demand for home schooling and cleared or certified the child to return to school."

Pro Bono Advice From Chicago Lawyer Jay Paul Deratany

In 2010, Mangus moved the New York State Supreme Court for an order granting Notice of Motion for Re-Argument or Leave to Appeal to the Court of Appeals. Proceeding pro se, she was advised pro bono by Chicago Lawyer and Gay Rights Activist, Jay Paul Deratany. The Supreme Court denied her Motion. She then moved to the Court of Appeals with a Notice of Motion for Leave to the Court of Appeals; that Motion was also denied.

Court of Appeals Hears Roughly 5 Percent of Cases

Mangus, although disappointed, was not surprised to learn that Fechter would not proceed to the Court of Appeals given that he was warned by his attorney that the Court of Appeals agrees to hear roughly 5 percent of the cases brought to it. According to statistics kept by the New York City Bar Association, the Court of Appeals accepts an average of fewer than 200 cases a year. For Mangus this constitutes a 'justice gap'. "Every one has the right to be heard and it is often-times the least-noticed cases that are of statewide public importance, she said."

Mangus reached out to The Buffalo News and the Tonawanda News with a request they join in reporting on this story ~ both have failed to respond to the request.

Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous, of Counsel) represented respondents New York State Office of Children and Family Services.

*Court: Niagara Civil Supreme
Index Number: 147201/2012
Upstate Index Number: 147201
Case Name: FECHTER vs. NYS
Case Type: Article 78
Track: Standard
RJI Filed: 06/07/2012
Upstate RJI Number:
Date NOI Due:
NOI Filed:
Disposition Date: 08/01/2012
Calendar Number:
Jury Status: Unknown
Justice Name: RALPH A. BONIELLO, III

Attorney/Firm For Plaintiff:
HOGAN & WILLIG Attorney Type: Attorney Of Record Atty. Status: Active
2410 NORTH FOREST RD. STE 301
GETZVILLE, NY 14068
(716)636-7600

Attorney/Firm For Defendant:
FILE Attorney Type: Attorney Of Record Atty. Status: Active

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