Opinion
01-11-2017
In the Matter of Ann Marie WALKER, petitioner, v. Howard A. ZUCKER, etc., et al., respondents.
DelliCarpini Law Firm, Garden City, NY (Christopher J. DelliCarpini of counsel), for petitioner. Eric T. Schneiderman, Attorney General, New York, NY (Michael S. Belohlavek and Bradford S. Glick of counsel), for respondents.
DelliCarpini Law Firm, Garden City, NY (Christopher J. DelliCarpini of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, New York, NY (Michael S. Belohlavek and Bradford S. Glick of counsel), for respondents.
JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, and FRANCESCA E. CONNOLLY, JJ.
Proceeding pursuant to CPLR article 78 to review a determination of the respondent Howard A. Zucker, as Acting Commissioner of Health of the State of New York, dated April 27, 2015, which adopted the findings and recommendations of an Administrative Law Judge, made after a hearing, and sustained a charge of patient abuse against the petitioner.
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
On November 8, 2011, the petitioner, a certified nursing assistant at Holliswood Care Center, was observed on a surveillance video using excessive force with a resident patient, and the petitioner's employment was terminated. Thereafter, the petitioner was charged by the respondent New York State Department of Health (hereinafter the DOH) with patient abuse, as defined under 10 NYCRR 81.1, in violation of Public Health Law § 2803–d. Following a hearing, an Administrative Law Judge (hereinafter the ALJ) determined that the DOH demonstrated by a fair preponderance of the evidence that the petitioner "roughly handled the resident and used excessive force that could likely have caused harm to the resident" in violation of Public Health Law § 2803–d. In a determination dated April 27, 2015, the respondent Howard A. Zucker, as Acting Commissioner of Health of the State of New York (hereinafter the Commissioner), adopted the ALJ's findings and recommendations and sustained the charge of patient abuse. The petitioner commenced this proceeding pursuant to CPLR article 78 to challenge the Commissioner's determination.
The petitioner's contention that the DOH did not lay a proper foundation for the admission of the video surveillance footage depicting the incident between the petitioner and the patient is without merit. The strict rules of evidence do not apply to administrative hearings, and the ALJ providently exercised her discretion in admitting the video footage into evidence (see State Administrative Procedure Act § 306[1] ; see generally Matter of Bargellini v. New York State Dept. of Health, 129 A.D.3d 1226, 1228, 10 N.Y.S.3d 732 ; Matter of Willis v. New York State Liq. Auth., 118 A.D.3d 1013, 1014, 988 N.Y.S.2d 671 ; Matter of Mo's Carting Corp. v. Martinez, 28 A.D.3d 560, 561, 813 N.Y.S.2d 505 ; Matter of Ragin v. New York City Employees' Retirement Sys., 19 A.D.3d 603, 604, 797 N.Y.S.2d 133 ; Matter of King v. New York State Dept. of Health, 295 A.D.2d 743, 744, 743 N.Y.S.2d 206 ).
Contrary to the petitioner's contention, substantial evidence in the record supports the Commissioner's determination that the charge of patient abuse was substantiated by a fair preponderance of the evidence presented at the hearing (see Matter of Miller v. DeBuono, 90 N.Y.2d 783, 666 N.Y.S.2d 548, 689 N.E.2d 518 ; Matter of Jean–Louis v. Daines, 90 A.D.3d 660, 660–661, 933 N.Y.S.2d 898 ; Matter of
Sylvia v. Novello, 309 A.D.2d 1190, 1191, 765 N.Y.S.2d 296 ; Matter of Thomas v. DeBuono, 238 A.D.2d 345, 656 N.Y.S.2d 943 ).
The petitioner's remaining contentions are without merit.