| Matter of Posada v New York State Dept. of Health |
| 2008 NY Slip Op 00133 [47 AD3d 1026] |
| January 10, 2008 |
| Appellate Division, Third Department |
| In the Matter of Jose G. Posada, Respondent, v New York StateDepartment of Health et al., Appellants. |
—[*1] Gleason, Dunn, Walsh & O'Shea, Albany (Richard C. Reilly of counsel), forrespondent.
Carpinello, J. Appeal from a judgment of the Supreme Court (Bradley, J.), entered July 5,2006 in Albany County, which, in a proceeding pursuant to CPLR article 78, partially grantedpetitioner's motion to direct respondents to, among other things, hold a rehearing before aHearing Committee of the State Board for Professional Medical Conduct.
By decision dated February 18, 2004, a Hearing Committee of the State Board forProfessional Medical Conduct determined that petitioner, a surgeon, had committed acts ofnegligence on more than one occasion and consequently ordered a two-year stayed suspension ofhis licence to practice medicine. One of the acts of negligence involved the installation of acardiac pacemaker in an elderly patient who later died for unrelated reasons. Subsequently, adifferent Hearing Committee considered charges of negligence and incompetence against theradiologist involved in the same procedure and exonerated him. Based upon a perceivedcontradiction between these two determinations, petitioner succeeded in obtaining an order ofSupreme Court requiring a reconsideration on the merits of the Hearing Committee'sdetermination.[*2]
In response to the order directing reconsideration, thematter was reviewed by the Director of respondents' Office of Professional Medical Conduct.Relying in part on the differing responsibilities of these two physicians, the Director found thatthe determinations were not inconsistent and therefore declined to vacate the finding ofmisconduct against petitioner. This prompted the subject motion in which petitioner seeks tohold respondents in contempt for violating the order mandating reconsideration. Supreme Court,acknowledging that it failed to specify the precise type of agency reconsideration in its priorjudgment, declined to find respondents in contempt but proceeded to order a "full rehearing" by aHearing Committee.
We agree with respondents' contention that modification is required. Once Supreme Courtdetermined that its earlier judgment was ambiguous, and thus punishment for contempt wasinappropriate, the motion should have been denied in its entirety (see Quick v ABS Realty Corp., 13AD3d 1021, 1022 [2004]). To the extent that petitioner argues that respondents should beestopped from invoking this argument, we are unable to determine from this record that theyhave in fact taken an inconsistent position in a separate proceeding directly challenging theDirector's determination.
Mercure, J.P., Peters, Spain and Lahtinen, JJ., concur. Ordered that the judgment is modified,on the law, without costs, by reversing so much thereof as partially granted petitioner's motion;motion denied in its entirety; and, as so modified, affirmed.