Opinion
224540.
Decided April 15, 2008.
DeGraff, Foy Kunz, LLP, Attorneys For Petitioner, David F. Kunz, Esq., of counsel, Albany, New York.
Andrew Cuomo, Attorney General of the State of New York.
Attorneys For Respondents, Adrienne J. Kerwin, Esq., of counsel, The Capitol, Albany, New York.
In this CPLR Article 78 proceeding, petitioner seeks a stay of an administrative hearing, in addition to other relief, based upon alleged due process and other violations in connection with a pending administrative proceeding pursuant to Public Health Law § 230 commenced by the Department of Health, Office of Professional Medical Conduct (OPMC). Respondents move to dismiss the petition on the basis that petitioner has failed to exhaust his administrative remedies.
As background information relevant to the present proceeding, the record reflects that petitioner was the subject of prior misconduct proceedings in 2006, regarding his failure to submit to a medical and psychiatric examination pursuant to Public Health Law § 230. In conjunction with that proceeding, petitioner was ultimately evaluated in December 2006 at Rush Behavioral Health Center in Illinois ("Rush"). A copy of the report from Rush was provided to petitioner's attorney on January 16, 2007 via overnight mail. Petitioner's counsel was advised in May 2007 that disciplinary charges would be brought against petitioner. Counsel for petitioner and respondent subsequently met to discuss the charges and thereafter stipulated to dates for service of process and for the first date of the hearing.On January 28, 2008, a Notice of Hearing and Statement of Charges were served upon petitioner's counsel, pursuant to the agreement of respective counsel for the parties. Counsel had also agreed that the hearing would commence on February 29, 2008. The six specifications of the charges against petitioner included allegations of cocaine dependence, habitual abuse of alcohol, impairment of ability to practice medicine, violation of a prior Board-ordered condition, and failure to file a report required by the Department.
On February 20, 2008, counsel for the parties attended a pre-hearing conference which was conducted by Administrative Law Judge, Respondent Jeffrey Armon (ALJ Armon). Petitioner made an omnibus motion at the conference seeking discovery of evidence from petitioner's evaluation in December 2006 at Rush, dismissal of the sixth specification in the Statement of Charges, issuance of subpoenas for deposition testimony, removal of two members of the Hearing Committee for bias, and a stay of the hearing to permit the requested further discovery. ALJ Armon granted petitioner's request for certain subpoenas, denied petitioner's request for a stay of the February 29, 2008 hearing and denied petitioner's other requested relief.
On February 29, 2008, the OPMC hearing commenced. Additional hearing days are scheduled for April and May.
On March 3, 2008, petitioner commenced the present proceeding. As noted above, respondents have moved to dismiss the petition based upon petitioner's failure to exhaust administrative remedies.
The well established general rule is that administrative remedies must be exhausted before a party brings suit in court, subject to limited exceptions ( Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52; Martinez 2001 v New York City Campaign Finance Bd. , 36 AD3d 544 , 548 [1st Dept 2007]).
It is well settled, particularly in the context of professional misconduct proceedings, that, "absent extraordinary circumstances, courts are constrained not to interject themselves into ongoing administrative proceedings until final resolution of those proceedings before the agency." An error of law in the administrative process is not subject to collateral review, "no matter how egregious that error may be."
( In re Williams, 245 AD2d 1014, 1014-15 [4th Dept 1997] [citations omitted]; see DiBlasio v Novello , 28 AD3d 339 , 341-42 [1st Dept 2006]; Lepley v State of New York Dept. of Health, 190 AD2d 556, 557 [1st Dept 1993]).
The writ of prohibition does not lie as a means of seeking collateral review of a mere error of law in the administrative process, no matter how egregious that error might be, "and how cleverly the error may be characterized by counsel as an excess of jurisdiction or power."
( Doe v Axelrod, 71 NY2d 484, 490 [citations omitted]).
Public Health Law § 230 provides for the final determination of the hearing committee to be administratively reviewed, which would then be subject to judicial review (Public Health Law § 230[i]; Axelrod, 71 NY2d at 490; Doe v Novello , 39 AD3d 1168 , 1169 [4th Dept 2007] [holding that physician who objected to evidentiary ruling of ALJ was required to first exhaust his administrative remedies]; DiBlasio v Novello , 28 AD3d 339, 342 [1st Dept 2006] [holding that administrative exhaustion requirement applied when physician sought to have OPMC required to produce documents that they had been ordered to produce prior to the misconduct hearing commencing).
Where an agency's actions are alleged to be "unconstitutional or wholly beyond its grant of power," exceptions to the exhaustion requirement have been found ( Martinez, 36 AD3d at 548). However, regarding claims of constitutional violations, it has been held that procedural due process claims, as compared to claims that an agency's statutes or administrative rules are unconstitutional, are not the kind of constitutional claims that permit an exception to the exhaustion requirement ( Martinez, 36 AD3d at 549).
Petitioner asserts multiple constitutional violations and also claims that ALJ Armon acted beyond the scope of his authority.
First, petitioner claims that the hearing in fact commenced at the pre-hearing conference on February 20, 2008. Specifically, petitioner alleges that ALJ Armon received exhibits into evidence from OPMC, which commenced the hearing he argues. Petitioner then contends that ALJ Armon indicated that the OPMC exhibits would be given to the Hearing Committee in advance of the hearing. Petitioner argues that this was improper.
Second, petitioner claims that ALJ Armon violated petitioner's due process rights by denying his motion to stay the February 28, 2008 hearing so that petitioner could have additional time to prepare for the hearing, including time to obtain raw data from Rush that was used in the preparation of the report from Rush. Petitioner argues that the expert witness from Rush who testified on February 28, 2008 did not bring the raw data, in addition to other notes, with him in his file and therefore petitioner's ability to effectively cross-examine him was impeded. Petitioner contends that the need for him to obtain this data was acknowledged by ALJ Armon when subpoenas were signed for this information, but that the short time frame prior to the hearing commencing rendered the subpoenas ineffective.
Third, petitioner claims that the Statement of Charges violates his due process rights because one of the charges, the Sixth Specification, was previously presented to a different Hearing Committee and was relied upon in assessing a penalty against petitioner. Petitioner acknowledges that ALJ Armon was without the power to dismiss the charge ( 10 NYCRR § 51.9[d][1]). Petitioner directed a motion at the Committee seeking dismissal of this charge. ALJ Armon denied this aspect of the motion, and petitioner argues that it was beyond the scope of the ALJ's authority to decide this portion of the motion, which was directed at the Committee and which the ALJ was without the power to grant.
Lastly, petitioner sought to remove two of the three Hearing Committee members for bias, which was denied by ALJ Armon. Petitioner claims that this also violated his due process rights. He contends that at least one of the members should have been removed, namely, Andrew J. Merritt, M.D., who sits on the board of a medical liability insurer. Petitioner notes his role in testifying as an expert in plaintiffs' medical malpractice cases and argues that Dr. Merritt could therefore have underlying financial motives and bias against petitioner.
Respondents have moved to dismiss the petition on the basis that petitioner is required to exhaust his administrative remedies before bringing any of the claims set forth in the petition. Respondents argue that the interlocutory decisions that petitioner attempts to challenge are clearly precluded from being asserted until after a final administrative decision and after exhausting administrative remedies.
The Court concurs that the present proceeding is premature and that petitioner must exhaust his administrative remedies. While petitioner's counsel has attempted to frame the arguments as violations of constitutional rights or excesses of jurisdiction, this Court does not find that the claims in fact allow petitioner to be exempt from the requirement of exhausting administrative remedies, as set forth below. To the extent petitioner sets forth procedural due process claims, such claims have not been found to rise to the level that permit an exception to the exhaustion requirement ( Martinez, 36 AD3d at 549).
Regarding petitioner's claims that ALJ Armon erred by requiring the hearing to commence despite petitioner's request for an adjournment, and by providing OPMC exhibits to committee members in advance of the scheduled hearing date, these are the types of interlocutory decisions of a hearing officer that cannot be addressed by a court until after the final administrative determination and until after petitioner has exhausted his administrative remedies (see, e.g., Axelrod, 71 NY2d at 490; Doe v Novello, 39 AD3d at 1169; DiBlasio, 28 AD3d at 342).
With regard to the ability of the ALJ to consider the motion to dismiss one of the charges against petitioner, the Court notes that Public Health Law § 230 grants the ALJ "the authority to rule on all motions. . ." (Public Health Law § 230[e]). This Court does not find that the Hearing Committee was authorized to consider such a motion in any event as it appears that the committee members are limited to considering requests for adjournments and that all motions are to be heard by the ALJ (Public Health Law § 230[e], [f]). In any event, petitioner's remedy is to bring a CPLR Article 78 proceeding after the final administrative determination ( see, e.g., Djavaheri v Axelrod, 119 AD2d 967 [3d Dept 1986] [holding that petitioner's remedy was an Article 78 proceeding after a final administrative determination where petitioner claimed that the professional misconduct charges duplicated prior charges of another state agency against petitioner which had been dropped]).
With regard to the bias allegations, the Court notes that committee members, while presumed to be free from bias, are to be disqualified if bias is found ( 10 NYCRR § 51.17[a]).
(a) . . . For purposes of this section, bias shall exist only when there is an expectation of pecuniary or other personal benefit from a particular outcome of the case or when there is a substantial likelihood that the outcome of the case will be affected by a person's prior knowledge of the case, prior acquaintance with the parties, witnesses, representatives, or other participants in the hearing, or other predisposition with regard to the case. The appearance of impropriety shall not be a grounds for disqualification. . . . .
(b) . . . A party seeking disqualification for bias has the burden of demonstrating bias. The party seeking disqualification shall submit to the hearing officer an affidavit pursuant to SAPA section 303 setting forth the facts establishing bias. Mere allegations of bias shall be insufficient to establish bias.
( 10 NYCRR § 51.17).
Regarding the bias allegations, this Court first notes that it would be premature to consider them at this time ( see generally Yoonessi v State Bd. for Professional Med. Conduct , 2 AD3d 1070 [3d Dept 2003]; Daniels v Novello, 306 AD2d 644 [3d Dept 2003]; Lauersen v Novello, 293 AD2d 833 [3d Dept 2002]). The Court further notes that it questions whether petitioner met his burden for establishing bias beyond setting forth at most an appearance of impropriety or mere allegations of bias, but this issue need not be considered further.
In summary, the Court finds that petitioner is required to exhaust his administrative remedies and that the present proceeding is premature ( Axelrod, 71 NY2d at 490; Doe v Novello, 39 AD3d at 1169; DiBlasio, 28 AD3d at 342).
Accordingly, it is
ORDERED and ADJUDGED that the petition is dismissed; and it is further
ORDERED and ADJUDGED that respondents' motion to dismiss the petition is granted.
This constitutes the Decision, Order and Judgment of the Court. All papers including this Decision, Order and Judgment are returned to the attorney for the respondents. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.
Papers Considered:
Order to Show Cause; Good Faith Affidavit of David F. Kunz, Esq., in Support of the Petitioner's Motion for Stay and Other Relief Pursuant to CPLR Article 78 sworn to February 26, 2008, together with Exhibit "A"; Verified Petition dated February 26, 2008, together with Exhibits "A" through "B"; Affidavit of David F. Kunz, Esq., in Support of the Petitioner's Motion for Stay and Other Relief Pursuant to CPLR Article 78 sworn to February 26, 2008, together with Exhibits "A" through "G"; Memorandum of Law on Behalf of Petitioner dated February 26, 2008;
Notice of Motion dated March 6, 2008; Affidavit of Timothy J. Mahar, Esq., sworn to March 5, 2008; together with Exhibits "A" through "M"; Memorandum of Law in Support of Respondents' Motion to Dismiss dated March 6, 2008;
Affidavit of David F. Kunz, Esq., sworn to March 10, 2008; Memorandum of Law on Behalf of Petitioner in Opposition to Respondents' Motion to Dismiss dated March 10, 2008;
Affidavit of David F. Kunz, Esq., sworn to March 18, 2008; Transcript of February 29, 2008 Hearing (In re Rigle).