| Matter of Doctor v New York State Off. of Alcoholism &Substance Abuse Servs. |
| 2013 NY Slip Op 08169 [112 AD3d 1020] |
| December 5, 2013 |
| Appellate Division, Third Department |
| In the Matter of Amos Doctor, Petitioner, v New York StateOffice of Alcoholism and Substance Abuse Services et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), forrespondents.
Egan Jr., J. Proceeding pursuant to CPLR article 78 (transferred to this Court byorder of the Supreme Court, entered in Albany County) to review a determination ofrespondent Commissioner of Alcoholism and Substance Abuse Services which revokedpetitioner's credential.
At all times relevant to this proceeding, petitioner was employed by respondentOffice of Alcoholism and Substance Abuse Services (hereinafter OASAS) as anAddictions Counselor I at the Bronx Addiction Treatment Center in Bronx County.Pursuant to the terms of his employment, petitioner was required to maintain aCredentialed Alcoholism and Substance Abuse Counselor (hereinafter CASAC)credential, which is issued by OASAS. Petitioner received his CASAC credential in 2004and successfully renewed that credential, as required, in 2006 and 2008.
In February 2009, OASAS issued a notice of discipline to petitioner alleging fourspecifications of misconduct and seeking termination of petitioner's employment; three ofthe charges alleged an inappropriate relationship with a female client at the facility(hereinafter client [*2]A), and the remaining chargealleged that petitioner created a hostile work environment with regard to his purportedattempt to establish a personal relationship with an intern at the facility. An arbitrationhearing ensued, at which both client A and the intern appeared and testified. At theconclusion of that hearing, the arbitrator dismissed all four charges and specificationsagainst petitioner finding, among other things, that the testimony offered by client A andthe intern was not credible. Specifically, the arbitrator noted that client A admitted thatshe had "feelings" for petitioner and that she had acknowledged—on aself-assessment form completed in connection with her treatment—that she wasonly sometimes honest with herself and others. Additionally, the arbitrator found that notonly did the intern delay in reporting the allegedly offending conduct for almost one yearbut, once the incident was reported, no action was taken by facilitystaff—prompting the arbitrator to "question the entire matter," including thecredibility of the staff member to whom the alleged misconduct was reported. Finally, thearbitrator called into question the veracity of an unsworn witness statement given byanother client at the facility (hereinafter client B).[FN1]
In the interim, and while the arbitration proceeding was still pending, petitioner'ssupervisor lodged a complaint against petitioner alleging violations of certain canons ofethics relative to his CASAC credential. A review of the CASAC complaint and the priornotice of discipline reveals that both documents were predicated upon substantially thesame conduct involving client A and the intern—although the CASAC complaintraised additional allegations with respect to an incident wherein petitioner purportedlymade an inappropriate comment regarding certain clothing worn by another client at thefacility (hereinafter client C). Following a hearing, at which none of the individuals whowere either targets of the alleged misconduct (clients A and C and the intern) or a witnessthereto (client B) testified, the Hearing Officer—relying primarily upon thetestimony offered by OASAS's investigator—recommended that petitioner'sCASAC credential be revoked. Respondent Commissioner of Alcoholism and SubstanceAbuse accepted the Hearing Officer's recommendations and revoked petitioner's CASACcredential; OASAS, in turn, terminated petitioner's employment based upon his failure tomaintain his CASAC credential. Petitioner then commenced this proceeding pursuant toCPLR article 78 to challenge that determination.
Petitioner's primary contention on review is that the determination revoking hisCASAC credential is not supported by substantial evidence in the record as awhole—specifically, that the hearsay evidence adduced at the hearing wasinsufficient to establish the alleged ethical violations. Substantial evidence has long beendefined as "such relevant proof as a reasonable mind may accept as adequate to support aconclusion or ultimate fact" (Matter of Berenhaus v Ward, 70 NY2d 436, 443[1987] [internal quotation marks and citations omitted]; accord Matter of Dewitt v NewYork State Bd. of Law Examiners, 90 AD3d 1457, 1457 [2011], lvdenied 18 NY3d 810 [2012]; Matter of Diehsner v Schenectady City SchoolDist., 152 AD2d 796, 797 [1989]; see Matter of Rauschmeier v Village of Johnson City, 91 AD3d1080, 1082 [2012], lv denied 19 NY3d 802 [2012]). In this regard, anadministrative determination may be based entirely upon hearsay evidence (seeMatter of JMH, Inc. v New York State Liq. Auth., 61 AD3d [*3]1260, 1261 [2009]; Matter of S & S Pub, Inc. v New York State Liq. Auth., 49AD3d 654, 655 [2008])—provided such evidence is "sufficiently relevant andprobative" (Matter of Diehsner v Schenectady City School Dist., 152 AD2d at797; see Matter of A-Plus vNew York State Lottery, 71 AD3d 1372, 1373 [2010], lv denied 14NY3d 714 [2010]; Matter ofCafÉ La China Corp. v New York State Liq. Auth., 43 AD3d 280, 281[2007]) or "sufficiently reliable" (Matter of Abdur-Raheem v Mann, 85 NY2d113, 119 [1995]; accord Matter of Pugliese v Remington Arms, 293 AD2d 897,897 [2002]; Matter of Russo v HRT, Inc. of Orange County, 246 AD2d 933, 936[1998], lv denied 91 NY2d 815 [1998]) and is not otherwise "seriouslycontroverted" (Matter ofToday's Lounge of Oneonta, Inc. v New York State Liq. Auth., 103 AD3d1082, 1083 [2013] [internal quotation marks and citations omitted]; accord Matter of McGillicuddy'sTap House, Ltd. v New York State Liq. Auth., 57 AD3d 1052, 1054 [2008];Matter of Ridge, Inc. v New York State Liq. Auth., 257 AD2d 625, 626 [1999]).
As noted previously, the substance of both the unsuccessful disciplinary proceedingand the related CASAC proceeding boiled down to petitioner's alleged efforts to eitherform inappropriate relationships with or make offensive comments to certain femaleclients and/or a coworker at the treatment facility. Two of thoseindividuals—client A and the intern—testified at the arbitration hearing andwere found to be not credible, and a similar determination was made with respect to theunsworn statement given by client B. None of the relevant individuals—clients A,B or C or the intern—testified at the CASAC hearing. Rather, OASAS relied uponcertain progress notes recorded in client A's and C's medical charts, the unswornstatements given by clients A and B and the testimony of its investigator, whointerviewed clients A and C.[FN2]
Although we have no doubt that the investigator conducted thorough interviews withmany of those involved[FN3]and accurately related—in both his report and his correspondingtestimony—the specific information gleaned therefrom, we cannotsay—given the particular facts of this case—that the hearsay proof adducedat the hearing was "the kind of evidence on which responsible persons are accustomed torely in serious affairs" (Matter of Diehsner v Schenectady City School Dist., 152AD2d at 797 [internal quotation marks and citations omitted]). In addition to thecredibility issues previously identified by the arbitrator with respect to client A and theintern, the record reflects that client C, to whom petitioner allegedly made aninappropriate comment regarding her clothing, also indicated that she was honest withherself and others only some of the time, and the record reflects that client C was able torecall the [*4]relevant incident only after prompting bythe investigator. All of these issues cast serious doubt upon the credibility of petitioner'saccusers and, for that reason, we do not find the hearsay evidence presented at theCASAC hearing to be sufficiently reliable to support the determination revokingpetitioner's CASAC credential. Accordingly, the underlying determination is annulled. Inlight of this conclusion, we need not address petitioner's alternative arguments.
Rose, J.P., Lahtinen and Garry, JJ., concur. Adjudged that the determination isannulled, without costs, petition granted to that extent, and matter remitted to respondentOffice of Alcoholism and Substance Abuse Services for further proceedings notinconsistent with this Court's decision.
Footnote 1: Client B, who did nottestify at the arbitration hearing and who was "tired" of listening to client A talk "everynight" about how much she "like[d]" petitioner, allegedly overheard a conversationbetween client A and petitioner wherein petitioner attempted to give client A his phonenumber.
Footnote 2: Additionally, two ofpetitioner's coworkers testified that they saw petitioner engaged in a conversation withclient A at a particular date and time. Petitioner, however, disputed only the substance ofthat conversation—not the fact that it occurred—and the record reflects thatthe coworkers had no firsthand knowledge as to the content of this conversation.Notably, there is nothing in the record to suggest that the mere fact that a conversationoccurred between client A and petitioner constituted improper conduct.
Footnote 3: Client B, who did nottestify at the arbitration hearing, was not interviewed by the investigator.