Stolz v. Board of Regents of University

• Decision Date: 24 July 1957
• Citation: 165 N.Y.S.2d 179,4 A.D.2d 361
• Parties: Matter of The Application of Bernard STOLZ, Petitioner, v. The BOARD OF REGENTS OF UNIVERSITY of the State of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 179

165 N.Y.S.2d 179

4 A.D.2d 361

Matter of The Application of Bernard STOLZ, Petitioner, v. The BOARD OF REGENTS OF UNIVERSITY of the State of New York,

Respondent.

Supreme Court, Appellate Division, Third Department.

July 24, 1957.

Koblenz & Koblenz, Albany (Edmund A. Koblenz and A. Abba Koblenz, Albany, of counsel), for petitioner.

Louis J. Lefkowitz, Atty. Gen. (John R. Davison, Sol. Gen., Albany, and Robert W. Bush, Asst. Atty. Gen., of counsel), for respondent.

Before FOSTER, P. J., and BERGAN, COON, HALPERN, and GIBSON, JJ.

HALPERN, Justice.

This is a proceeding under Article 78 of the Civil Practice Act to review the determination of the Board of Regents suspending the petitioner's license to practice medicine for one year.

The petitioner was charged with fraud or deceit in the practice of medicine within the purview and meaning of subdivision 2(a) of section 6514 of the Education Law, in that he had issued prescriptions for narcotic drugs in various false names for the purpose of supplying the drugs to one George Lockwood. It was also charged that he had pleaded guilty to a violation of section 438 [now section 3351] of the Public Health Law, growing out of the same act. This was made the basis of an additional charge under subdivision 2(b) of section 6514 of the Education Law, which authorizes the imposition of discipline upon a medical practitioner who had been convicted of a crime.

The case was heard first by a subcommittee of the Medical Grievance Committee, in accordance with the provisions of subdivision 4 of section 6515 of the Education Law. The subcommittee found that the petitioner was guilty of the charges made against him and recommended that his license be suspended for a period of six months. In explanation of the fixing of this measure of discipline, the subcommittee said:

'In determining the measure of discipline to be imposed in this case, we have taken into consideration the respondent's assertions before us that he was moved by sympathy to help George Lockwood rid himself of the drug habit. We are inclined to believe that respondent was not governed solely by monetary considerations. This is borne out by the fact that there is no further proof in the record, other than the two prescriptions mentioned herein, of respondent's charging exorbitant fees for supplying drugs to Lockwood. We have further considered the fact that respondent fully realizes the fraud and deceit perpetrated by him in the issuance of these prescriptions and his statement that he would not again fall into this error. We cannot, however, overlook or completely condone the respondent's wrongdoing in this case. We accordingly recommend that for his misconduct the respondent's license as a physician should be suspended for a period of six months.'

The findings and recommendations of the subcommittee were unanimously adopted by the Medical Grievance Committee. The case was then reviewed, pursuant to section 211 of the Education Law, by the Regents' Committee on Discipline. The Regents' Committee agreed with the findings of guilt but recommended that the petitioner's license be suspended for only three months. In its report, the Committee on Discipline reviewed the evidence fully, pointing out both the aggravating and the extenuating circumstances, and concluded:

'In reaching our own conclusion as to the proper measure of discipline, we have taken account of the disposition of other proceedings involving physicians who have prescribed narcotics for known addicts, but have not done so as a regular business. The present case involves prescription for one addict only. It does not involve a mercenary course of conduct. Against the factor of issuing prescriptions in names other than that of the addict, there is the extenuating circumstance that Respondent has put some limit on his prescribing; and there is persuasive evidence of Respondent's good character * * * In all the circumstances, and in view of the measure of discipline in other cases in the same field, we conclude that the proper measure of discipline here is license suspension for a period of three months.'

The case then went to the Board of Regents. The board adopted a resolution, accepting and sustaining the findings of guilt but rejecting the recommendations of both the Medical Grievance Committee and the Committee on Discipline, as to the measure of discipline, and, without any explanation, directing the suspension of the petitioner's license for a period of one year.

Upon this application to review the Regents' determination, no question is raised as to the guilt of the petitioner of the violations charged against him. The only question raised concerns the measure of discipline. Prior to the adoption of subdivision 5-a of section 1296 of the Civil Practice Act (Ch. 661, L.1955), the courts had no power to review the penalty, punishment or measure of discipline imposed by an administrative agency (Barsky v. Board of Regents of University of New York, 305 N.Y. 89, 111 N.E.2d 222, affirmed 347 U.S. 442, 74 S.Ct. 650, 98 L.Ed. 829). Subdivision 5-a was adopted in order to overcome the holding of the Barsky case (see Proceedings of New York State Bar Association, Report of Committee on Administrative Law, 1954, p. 95; Id.1955, pp. 200-201; Memorandum filed by the Department of Education in opposition to the bill, McKinney's 1955 Session Laws, p. 1786).

Subdivision 5-a of section 1296 provides that in an Article 78 proceeding the court may determine: 'Whether the respondent abused his discretion in imposing the measure of punishment or penalty or discipline involved in the determination'.

Under this statute, we now have the power to review the measure of discipline imposed by administrative agencies but this grant of power must be reasonably construed in the light of the settled principles governing...