The following papers, numbered 1-6, were read on this application to/for CPLR ART 78 Notice of Motion/Petition/OSC — Affidavits — Exhibits No(s) 1-2 Notice of x motion-affs-exhs No(s) 3-6 Replying No(s) DECISION, ORDER, and JUDGMENT In this CPLR article 78 proceeding, the petitioner seeks judicial review of a New York State Office of Children and Family Services (OCFS) determination denying his request for a fair hearing to review an adverse determination rendered by the New York City Administration for Children’s Services (ACS) in connection with his request for enhanced reimbursements for the expenses of raising two foster children placed in his care. The petitioner, however, did not name OCFS as a respondent. Rather, he named, as respondents, the New York State Office of Temporary and Disability Assistance (OTDA), along with Deborah Crutch, an ACS employee, and the private children’s home who had custody of his niece and nephew prior to their placement in his household as foster children. OCFS and Crutch separately cross-move to dismiss the petition on the grounds that the petitioner failed to join OCFS as a necessary party and, in effect, that the petition does not state a cause of action against them because they did not render the challenged determination. The cross motions are granted, and the petition is dismissed. In December 2009, the petitioner, who resides in South Carolina, agreed to raise his niece and nephew, who were then New York residents, as foster children. Between April 1, 2010, and July 26, 2016, ACS reimbursed the petitioner at the standard rate for the expenses that he incurred in supporting his nephew. With respect to the petitioner’s niece, between April 1, 2010, and February 21, 2016, ACS reimbursed him at the standard rate. Upon granting the petitioner’s application referable to his niece, the ACS reimbursed him between February 22, 2016, and July 26, 2016, at an enhanced, special rate that is applicable to children with developmental disabilities. On July 27, 2016, the petitioner adopted the children and thus no longer qualified for foster care reimbursements. Thereafter, the petitioner applied to ACS for approval of reimbursement at the enhanced rate for both children, retroactive to April 1, 2010. ACS denied that application. On March 17, 2017, the petitioner requested a fair hearing before OCFS. On September 19, 2017, OCFS determined that ACS failed to provide the petitioner with proper notice and directed ACS fully to investigate and determine the petitioner’s eligibility for enhanced retroactive foster care benefits. After its investigation, on October 6, 2017, ACS concluded that the petitioner was not entitled to those benefits. On June 5, 2018, the petitioner requested a fair hearing before OCFS to review that decision. On February 26, 2019, OCFS denied the request for a full, evidentiary fair hearing. OCFS explained that it had no jurisdiction to conduct such a hearing because Social Services Law §22(4)(a) obligated the petitioner to request a fair hearing within 60 days of the ACS’s determination, and the petitioner made his request more than 60 days after that date. The petitioner commenced this proceeding on June 25, 2019, naming, as respondents, OTDA, ACS fair hearing representative Deborah Crutch, and St. Dominic’s Home, the private New York institution in which the children resided in 2009. OTDA and Crutch now cross-move to dismiss the petition. It is well settled that “[i]n a CPLR article 78 proceeding, the governmental agency that performed the challenged action must be a named party” (Matter of Solid Waste Servs., Inc. v. New York City Dept. of Envtl. Protection, 29 AD3d 318, 319 [1st Dept 2006]; see Matter of Centeno v. City of New York, 115 AD3d 537, 537 [1st Dept 2014]). Stated another way, “a court may not adjudicate a dispute raised in a CPLR article 78 proceeding unless the governmental agency which performed the challenged action is a party thereto” (Matter of McNeill v. Town Board of Town of Ithaca, 260 AD2d 829, 830 [3d Dept 1999], affd 93 NY2d 812 [1999]; see Matter of Commco, Inc. v. Amelkin, 62 NY2d 260, 264-265 [1984]; Matter of Johnson v. Scholastic, Inc., 52 AD3d 375, 375 [1st Dept 2008]). Here, OCFS was the agency that made the challenged determination. It is thus not only a necessary party (see CPLR 1001[a]), but would be the only proper party to a proceeding challenging its determination (see Matter of Commco, Inc. v. Amelkin, 62 NY2d at 265). OTDA thus is not a proper party. Moreover, neither ACS nor its fair hearing representative are proper parties. Inasmuch as any determination made by OCFS after a fair hearing is final and binding on ACS, and ACS must comply with such a determination (see 18 NYCRR 358-6.1[b]), once OCFS renders such a determination, ACS would be an improper party to any CPLR article 78 challenge to OCFS’s determination (see Matter of Rivera v. Blass, 127 AD3d 759 [2d Dept 2015]; Matter of Safran v. Shah, 119 AD3d 590, 590-591 [2d Dept 2014]). Nor is St. Dominic’s Home a proper party, as it has made no determination whatsoever that could be reviewed by a court, and it would not be affected by the disposition of the petition here in any event. Hence, the petition fails to state a cause of action against any of the named respondents, and the proceeding must be dismissed against all of them on that ground. This matter is distinguishable from the common situation in which at least one CPLR article 78 respondent is a proper party, but the petitioner failed to join a necessary party. Under those circumstances, the court would be obligated to direct the joinder of that party as a respondent, regardless of whether the limitations period had expired, subject to that respondent’s assertion of that and all other defenses and affirmative defenses (see Windy Ridge Farm v. Assessor of Town of Shandaken, 11 NY3d 725, 727 [2008]; Matter of Lazzari v. Town of Eastchester, 62 AD3d 1002 [2d Dept 2009], affd 20 NY3d 214 [2012]; Friedland v. Hickox, 60 AD3d 426, 426 [1st Dept 2009]). If the newly joined party were thereafter dismissed from the proceeding, the court then would have to balance the factors enumerated in CPLR 1001(b) to determine whether the proceeding should continue even in the absence of that party. Here, however, none of the named respondents is a proper party, and the matter cannot proceed against them under any circumstances. Hence, joinder of OCFS at this juncture is not warranted. In any event, were the court to consider OCFS’s determination on the merits, it would be constrained to deny the petition. Social Services Law §22(4)(a) requires an applicant for benefits who obtained an adverse determination from a local social services district, such as the Administration for Children’s Services, to request a fair hearing before the appropriate office of the New York State Department of Social Services (NYS DSS) — here OCFS — within 60 days of the adverse determination (see 18 NYCRR 358-3.5[a]). The failure timely to make such a request in accordance with this statutory directive leaves the applicant without a remedy before either the NYS DSS or the courts, as the requirement is not waivable (see Matter of Walker, 87 AD2d 435, 445 [1st Dept 1982], revd on dissenting opn., 58 NY2d 811 [1983]; Matter of Frumoff v. Wing, 239 AD2d 216 [1st Dept 1997]; Matter of Garcia v. Blum, 66 AD2d 781, 782 [2d Dept 1978] [referring to the 60-day period for requesting a fair hearing as a non-extendable "statute of limitations"]; Matter of Everson v. Toia, 89 Misc 2d 999, 1001 [Sup Ct, Onondaga County 1976] [Hancock, J.]; Matter of Bozeat v. Berger, 87 Misc 2d 366, 370-371 [Sup Ct, Onondaga County 1976]). There is no dispute that the petitioner requested OCFS to conduct the fair hearing more than 60 days after ACS rendered the determination he sought to challenge. Even where an agency has authority to extend an administrative filing deadline, its denial of a requested extension of the deadline will only be annulled by a court where the agency abused its discretion in this regard (see Matter of Lopez v. 395 Brook Realty Corp., 72 AD3d 1389, 1389-1390 [3d Dept 2010]). It cannot be said, on the record before the court, that OCFS abused its discretion in any fashion. Accordingly, it is ORDERED that the cross motions of the respondents New York State Office of Temporary and Disability Assistance and Deborah Crutch, representing the New York City Administration for Children’s Services, to dismiss the petition is granted; and it is, ADJUDGED that the petition and proceeding are dismissed in their entirety. This constitutes the Decision, Order, and Judgment of the court.
