| Matter of Posada v New York State Dept. of Health |
| 2010 NY Slip Op 06130 [75 AD3d 880] |
| July 15, 2010 |
| Appellate Division, Third Department |
| In the Matter of Jose G. Posada, Appellant, v New York StateDepartment of Health et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Garry, J. Appeal from a judgment of the Supreme Court (Egan Jr., J.), entered February 27,2009 in Albany County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of the Director of the Office of Professional MedicalConduct which, upon reconsideration, adhered to a prior determination suspending petitioner'slicense to practice medicine in New York.
Petitioner, a surgeon, appeared before a Hearing Committee of the State Board forProfessional Medical Conduct in 2003 in response to allegations of acts of negligence on morethan one occasion in the practice of medicine. A radiologist testified on petitioner's behalfregarding a pacemaker installation in which the radiologist had also been involved. The HearingCommittee rejected the radiologist's testimony, found that petitioner had committed negligencerelative to the pacemaker installation, among other things, and ordered a two-year stayedsuspension of his license to practice medicine. A different Hearing Committee subsequentlyexonerated the radiologist on charges arising out of the same incident. Petitioner thereaftersought reconsideration by the Office of Professional Medical Conduct (hereinafter OPMC),contending that the determinations were inconsistent. OPMC denied the request on the groundthat there was no statutory authority for reconsideration.[*2]
Petitioner commenced a CPLR article 78 proceedingseeking an order directing respondents to reconsider his case. In an order entered in January2006, Supreme Court (Bradley, J.) granted the application. In February 2006, the Director ofOPMC (hereinafter Director) issued a letter to petitioner advising that the matter had beenreconsidered on the merits, that the determinations were not inconsistent because, among otherthings, petitioner and the radiologist bore different responsibilities, and that there was no basisfor vacating the finding or remitting the matter to a hearing committee. Petitioner thereaftersought an order finding respondents in contempt of court for failing to obey the January 2006order; he also commenced the instant CPLR article 78 proceeding seeking an order vacating theDirector's determination and requiring a hearing panel to reconsider the determination againstpetitioner. Supreme Court (Bradley, J.) denied petitioner's contempt application in part, findingthat respondents could not be held in contempt because the prior order had not specified aprecise type of agency reconsideration, and granted the application in part, directing respondentsto hold a rehearing before a hearing committee or the Administrative Review Board forProfessional Medical Conduct. As a result of this determination, Supreme Court (Kavanagh, J.),granted respondents' motion to dismiss the current CPLR article 78 proceeding as moot. Uponappeal, this Court modified the contempt determination, holding that the motion should havebeen denied in its entirety upon finding the prior judgment ambiguous and the contempt sanctioninappropriate (Matter of Posada v NewYork State Dept. of Health, 47 AD3d 1026, 1027 [2008]). The order dismissing thecurrent proceeding was subsequently reversed, with this Court finding that issues remained as tothe manner in which the reconsideration was performed (54 AD3d 1100, 1103 [2008]). Uponremittal, Supreme Court (Egan Jr., J.) dismissed the petition on the merits. Petitioner appeals.
Petitioner contends that respondents' procedure in reconsidering his case failed to complywith Supreme Court's directive or Public Health Law § 230, the governing statute. Inpetitioner's view, the Director had no authority to make such a determination, and a fullrehearing before a new hearing committee was required.[FN1]We disagree. Public Health Law § 230, among other things, sets out procedures for notice,hearing, and other aspects of disciplinary proceedings against certain professionals, includingphysicians. At the time of petitioner's original request for reconsideration, neither Public HealthLaw § 230 nor any other statute or regulation provided for reconsideration or rehearing ofa professional misconduct determination against a physician. Public Health Law § 230(10) (q), which now establishes a procedure by which a licensee may request reconsideration ofsuch a determination, was not yet in effect (see L 2008, ch 477, § 10). Moreover,as Supreme Court (Bradley, J.) later acknowledged, the January 2006 order did not direct that afull rehearing take place, or otherwise dictate the manner in which respondents were toreconsider petitioner's case. Thus, in the absence of statutory, regulatory, or judicial direction,the determination of what procedures to follow in reconsidering the determination againstpetitioner was necessarily left in respondents' discretion.
Within the scope of a proceeding under CPLR article 78, a court may not "compel an act inrespect to which the officer may exercise judgment or discretion" (Matter of CrainCommunications v Hughes, 74 NY2d 626, 628 [1989] [internal quotation marks andcitations omitted]; see CPLR 7803 [1]). Petitioner did not have a clear legal right todemand that [*3]reconsideration be performed in conformity withany particular procedure such that respondents had "a corresponding nondiscretionary duty";thus, relief in the nature of mandamus to compel was not available (Matter of Scherbyn vWayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 [1991]). Instead, sincethe determination as to how the reconsideration should be conducted involved the exercise ofrespondents' discretion, the issue presented is in the nature of mandamus to review, and theapplicable standard is "whether the agency determination was arbitrary and capricious oraffected by an error of law" (id.; see CPLR 7803 [3]; Siegel, NY Prac §558, at 960-961 [4th ed]).
Respondents allege that they based the procedure in petitioner's case on a procedure appliedin disciplinary proceedings conducted by the Board of Regents pursuant to title VIII of theEducation Law, in which the Director of the Office of Professional Discipline reviewsapplications for reconsideration and determines "in the exercise of discretion" whether furtheraction is required (8 NYCRR 3.3 [f]). Respondents allegedly determined that the official namedin 8 NYCRR 3.3 (f) and the Director had comparable roles and, accordingly, delegated authorityfor reconsideration of the determination against petitioner to the Director, instructing him toemploy a similar procedure. Petitioner argues that, in so doing, respondents misconstrued PublicHealth Law § 230 as it then existed, which, in his view, reserved all authority fordisciplinary determinations to the State Board for Professional Medical Conduct acting throughits hearing committees. We disagree with this contention.
"[T]he construction given statutes and regulations by the agency responsible for theiradministration will, if not irrational or unreasonable, be upheld" (Matter of Johnson vJoy, 48 NY2d 689, 691 [1979]). Respondents are responsible for the administration of thedisciplinary procedures established by Public Health Law § 230. We find their statutoryinterpretation rational, and thus entitled to "substantial deference" (Matter of SkylineSpecialty v Gargano, 294 AD2d 742, 742 [2002]).[FN2]The statute makes the hearing committees responsible for conducting disciplinary hearings andrendering determinations thereafter (see Public Health Law § 230 [7], [10]), butalso grants discretionary decision-making authority to the Director in numerous other aspects ofthe disciplinary process, alone or in consultation with other officers (see e.g. PublicHealth Law § 230 [10] [a] [i], [iv]; [m] [ii], [iii]; [o]; [11] [g] [i]; [18] [a]).[FN3]Thus, respondents reasonably concluded that the Director had sufficient discretionary authorityto reconsider petitioner's case on the merits. Moreover, in the absence of a directly applicablestatutory or [*4]regulatory reconsideration procedure, it was notirrational or unreasonable for respondents to look to an analogous procedure employed by theBoard of Regents for guidance. The fact that the procedure that respondents devised closelycorresponds to the reconsideration procedure subsequently enacted (see Public HealthLaw § 230 [10] [q]) further supports finding the determination rational.
We also disagree with petitioner's contention that respondents are bound by language inSupreme Court's (Bradley, J.) order upon the contempt application purportedly clarifying itsJanuary 2006 order, to the effect that a full rehearing was required. Any such direction wasinvalidated by this Court's determination that the court lacked power to take further action uponpetitioner's contempt application after determining that contempt was inappropriate (Matterof Posada v New York State Dept. of Health, 47 AD3d at 1027). In any event, the ultimateissue at this juncture is not what Supreme Court may have contemplated at the time of theJanuary 2006 order, but only whether respondents' actions and determinations in carrying outthat order were arbitrary, capricious, or otherwise erroneous (see CPLR 7803 [3]). Forthe reasons stated, we find that they were not.
Finally, in view of the strong public policy that favors resolution on the merits (see Matter of Castell v City of SaratogaSprings, 3 AD3d 774, 776 [2004]), Supreme Court properly declined to grant relief topetitioner based upon respondents' failure to serve a timely answer. Although the answer wasindisputably served well after the statutory time limit had expired (see CPLR 7804 [f]),there was no suggestion that respondents' delay was purposeful or resulted from any absence ofintent to contest the proceedings (seeMatter of Powers v De Groodt, 43 AD3d 509, 511 [2007]). Further, petitioner did notestablish that he was entitled to the relief he sought or that any prejudice resulted from the delay(see Matter of Castell v City of Saratoga Springs, 3 AD3d at 776). Thus, the courtproperly exercised its discretion in allowing the untimely answer to stand (see Matter ofPowers v De Groodt, 43 AD3d at 511-512; Matter of Alvarez v Coombe, 239 AD2d810, 811 [1997]).
Spain, J.P., Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote 1: Notably, petitioner's originalrequest for reconsideration was directed to OPMC and requested a rehearing only as analternative to a determination vacating the original finding of misconduct.
Footnote 2: Contrary to petitioner's claim,this issue is not a matter of "pure statutory reading and analysis, dependent only on accurateapprehension of legislative intent" in which deference to respondents' interpretation would not berequired (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]), as no specificstatutory language governed reconsideration at the pertinent time, and as respondents' expertisein the professional disciplinary process was required in devising an appropriate reconsiderationprocedure (compare Matter of Sheeranv New York State Dept. of Transp., 68 AD3d 1199, 1201 [2009], lv granted 14NY3d 707 [2010]).
Footnote 3: These provisions, in pertinentpart, were in effect when the reconsideration was performed.