| Matter of McAllan v New York State Dept. of Health |
| 2009 NY Slip Op 01715 [60 AD3d 464] |
| March 10, 2009 |
| Appellate Division, First Department |
| In the Matter of Richard J. McAllan, Appellant, v NewYork State Department of Health et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York (Ann P. Zybert of counsel), for New YorkState Department of Health and the New York State Emergency Medical Advisory Committee,respondents. Michael A. Cardozo, Corporation Counsel, New York (Scott Shorr of counsel), formunicipal respondents.
Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered September 11,2007, which granted respondents' cross motions to dismiss this CPLR article 78 proceeding dueto petitioner's lack of standing, unanimously affirmed, without costs.
Petitioner retired in December 2004, having served with the New York City Fire Departmentas a paramedic. Two months later, the New York City Emergency Medical Advisory Committeevoted to allow advanced life support first response units to be staffed with one paramedic andone emergency medical technician, instead of two paramedics. Petitioner brought thisproceeding to challenge that staffing change.
To have standing to challenge a governmental action, a party "must show 'injury in fact,' "such that he "will actually be harmed by the challenged administrative action. As the term itselfimplies, the injury must be more than conjectural" (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d207, 211 [2004]). Furthermore, "petitioners must show that they have suffered an injury. . . distinct from that of the general public" (Matter of Transactive Corp. v NewYork State Dept. of Social Servs., 92 NY2d 579, 587 [1998]). Petitioner's concern that theHealth Department's determination might adversely affect him, as a citizen, if he requires anambulance or a fire engine in the future, is too speculative. Moreover, he concedes that this is aconcern he shares with millions of other New York City residents. Therefore, he has not sufferedan injury "different in kind or degree from that suffered by the public at large" (Matter ofParkland Ambulance Serv. v New York State Dept. of Health, 261 AD2d 770, 772 [1999],lv denied 93 NY2d 818 [1999]).
Petitioner's reliance on Public Health Law § 3002-a (2-a) is of no avail. Assumingarguendo that this subdivision applies to judicial proceedings as well as to administrativeappeals, petitioner was not adversely affected in his capacity as a paramedic because he retiredbefore the [*2]effective date of the change (see generally Matter of Clark v Town Bd.of Town of Clarkstown, 28 AD3d 553 [2006]).
Petitioner did not contend in the nisi prius court that he should be granted public intereststanding or that respondents had violated the State Administrative Procedure Act. We decline toconsider these new arguments (see e.g.Matter of Wallace v Environmental Control Bd. of City of N.Y. [Dept. of ConsumerAffairs], 8 AD3d 78 [2004]; Matter of Cocozzo v Ward, 162 AD2d 202, 203[1990]).
Petitioner lacks taxpayer standing under State Finance Law § 123-b because "thedispositive activity challenged" by him was a "nonfiscal determination" (Kennedy vNovello, 299 AD2d 605, 607 [2002], lv denied 99 NY2d 507 [2003]).
We have considered petitioner's remaining arguments and find them unavailing.Concur—Mazzarelli, J.P., Saxe, Nardelli, DeGrasse and Freedman, JJ.