Ackerman v. N.Y.S. Dep't of Health
| Decision Date | 02 November 2017 |
| Parties | In the Matter of Cheryl ACKERMAN, Petitioner, v. NEW YORK STATE DEPARTMENT OF HEALTH, Respondent. |
| Court | New York Supreme Court — Appellate Division |
155 A.D.3d 1138
64 N.Y.S.3d 370
In the Matter of Cheryl ACKERMAN, Petitioner,
v.
NEW YORK STATE DEPARTMENT OF HEALTH, Respondent.
Supreme Court, Appellate Division, Third Department, New York.
Nov. 2, 2017.
Cox Padmore Skolnick & Shakarchy LLP, New York City (Sanford Hausler of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, New York City (Felicia Gross of counsel), for respondent.
Before: EGAN JR., J.P., LYNCH, ROSE and MULVEY, JJ.
EGAN JR., J.P.
Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Public Health Law § 230–c [5 ] ) to review a determination of the Administrative Review Board for Professional Medical Conduct, which, among other things, placed petitioner on three years of probation.
Petitioner, an internist and board-certified dermatologist, was licensed to practice medicine in New York in 1987. In 2011, the New Jersey Board of Medical Examiners (hereinafter the New Jersey Board) commenced an investigation against petitioner after receiving complaints regarding, among other things, her mental health status and professional conduct. Thereafter, petitioner entered into a Private Letter Agreement with the New Jersey Board that permitted her to continue practicing medicine so long as she complied with the terms of the agreement, which required, among other things, that she continue her enrollment in the New Jersey Professional Assistance Program (hereinafter PAP), continue mental health treatment and submit to an independent psychiatric examination. The Private Letter Agreement further provided that, should petitioner fail to comply with the terms thereof, her medical license would be subject to an automatic suspension. After petitioner failed to provide the requisite psychiatric reports to PAP and refused to obtain an independent psychiatric evaluation, in February 2012, the New Jersey Board issued an order of automatic suspension. Petitioner thereafter submitted several applications seeking to have her medical license reinstated; however, her applications were repeatedly denied based upon, among other things, her continued failure to abide by the terms of the Private Letter Agreement. Ultimately, in November 2015, petitioner entered into a consent order with the New Jersey Board reinstating her medical license on the condition that she, among other things, continue receiving mental health treatment and remain employed by a physician approved by the New Jersey Board.
In May 2015, the Bureau of Professional Medical Conduct (hereinafter BPMC) commenced a direct referral proceeding (see Public Health Law § 230[10][p] ) based upon petitioner having committed acts in New Jersey which, if committed in New York, would constitute professional misconduct (see Education Law § 6530 [7 ], [8], [15], [21], [29] ). In November 2015, BPMC filed an amended statement of charges—alleging one specification of misconduct—based upon the disciplinary action
taken in New Jersey (see Education Law § 6530 [9 ][d] ).1 Following a hearing, the Hearing Committee of the State Board for Professional Medical Conduct sustained the charge and, among other things, imposed a three-year stayed suspension of petitioner's license to practice medicine, placed her on probation for a period of three years and required her to provide 90 days' notice should she decide to return to the practice of medicine in New York.2
On administrative appeal, the Administrative Review Board for Professional Medical Conduct (hereinafter ARB) confirmed the Hearing Committee's determination and imposition of a three-year period of probation, but overturned petitioner's stayed suspension, finding probation and practice supervision to be sufficient. Petitioner thereafter commenced this CPLR article 78 proceeding (see Public Health Law § 230–c [5 ] ) seeking to annul the ARB's determination.
This Court's "review of an ARB determination is limited to ascertaining whether the determination was arbitrary and capricious, affected by error of law or an abuse of discretion" (Matter of Bargellini v. New York State Dept. of Health, 129 A.D.3d 1226, 1227, 10 N.Y.S.3d 732 [2015] [internal quotation marks and citations omitted], lv. denied 26 N.Y.3d 905, 2015 WL 5445615 [2015] ; see Matter of Lakner v. New York State Dept. of Health, 72 A.D.3d 1225, 1226, 898 N.Y.S.2d 709 [2010], lv. denied 15 N.Y.3d 704, 2010 WL 3397042 [2010] ; Matter of Sidoti v. State Bd. for Professional Med. Conduct, 55 A.D.3d 1162, 1164, 866 N.Y.S.2d 801 [2008] ).3 Here, the evidence...
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