Opinion
December 14, 1984
Appeal from the Supreme Court, Onondaga County, Aloi, J.
Present — Hancock, Jr., J.P., Callahan, Doerr, Green and Moule, JJ. [ 124 Misc.2d 75.]
Judgment unanimously reversed, without costs, and petition dismissed. Memorandum: In this CPLR article 78 proceeding petitioner, formerly a nurse at St. Camillus Nursing Home, seeks to enjoin respondents from conducting further hearings on charges that she was guilty of patient abuse. Special Term has granted this relief holding that respondents failed to afford petitioner an opportunity for a hearing "within [a] reasonable time" (State Administrative Procedure Act, § 301, subd 1).
Special Term's determination effectively depriving the Commissioner of jurisdiction to proceed is improper; even if there had been a showing of substantial prejudice due to delay in scheduling the hearings, the Commissioner would not have been ousted of jurisdiction. "In such circumstance, there would have been `at most an "erroneous exercise of authority" since such delay would not divest the [commissioner] of jurisdiction'" ( Matter of Geary v. Commissioner of Motor Vehicles, 59 N.Y.2d 950, 952, quoting Matter of Sarkisian Bros. v. State Div. of Human Rights, 48 N.Y.2d 816, 818; see Matter of Axelrod, 103 A.D.2d 1007). Petitioner must seek relief first in administrative review and following exhaustion of that remedy in judicial review.