Bevacqua v. Sobol

• Decision Date: 06 February 1992
• Citation: 579 N.Y.S.2d 243,176 A.D.2d 1
• Parties: In the Matter of Brian K. BEVACQUA, Petitioner, v. Thomas SOBOL, as Commissioner of Education, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 243

579 N.Y.S.2d 243

176 A.D.2d 1

In the Matter of Brian K. BEVACQUA, Petitioner, v. Thomas SOBOL, as Commissioner of Education, Respondent.

Supreme Court, Appellate Division Third Department.

Feb. 6, 1992.

Levy, Gutman, Goldberg & Kaplan (Jeremiah S. Gutman and Gail A. Wechsler, of counsel), New York City, for petitioner.

Lizette A. Cantres (Frederick W. Burgess, of counsel), Albany, for respondent.

Before MIKOLL, YESAWICH, CREW, MAHONEY and HARVEY, JJ.

YESAWICH, Justice.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which denied petitioner's application for a license to practice medicine in New York.

Petitioner, a physician licensed to practice medicine in Pennsylvania, applied for a license to practice in New York. Shortly before applying, petitioner pleaded guilty in a Federal court in Pennsylvania to knowingly receiving hardcore child pornography (18 U.S.C. § 2252[a][2]; he was placed on probation for two years and fined $1,500.

After a hearing was held at petitioner's request pursuant to 8 NYCRR 28.5 to assess petitioner's moral character, a peer panel of the New York State Board for Medicine, by a 2 to 1 vote, denied petitioner's application because he did not sufficiently fulfill the moral character prerequisite for licensure. At the time of the hearing petitioner was practicing medicine and teaching in Ohio. On appeal authorized by 8 NYCRR 28.6, the Committee on the Professions (hereinafter COP) affirmed. Thereafter, petitioner commenced the instant CPLR article 78 proceeding to annul this determination and Supreme Court, believing that a substantial evidence issue had been raised, transferred the proceeding to this court (CPLR 7804[g].

Initially, it is necessary to consider whether this matter is properly before this court. It is respondent's contention that Supreme Court incorrectly transferred this proceeding, that the court erroneously concluded that the standard of review is whether respondent's determination is supported by substantial evidence, and that the correct standard is the arbitrary and capricious test. Respondent would have us apply this latter test and, upon doing so, dismiss the petition.

While the principles are easily articulated, deciding what standard to invoke when reviewing an agency's determination is not always easy of resolution. If the agency determination is administrative in nature or follows an evidentiary hearing not required by law, the arbitrary and capricious test applies (CPLR 7803[3]; Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321; Matter of Christopher v. Phillips, 160 A.D.2d 1165, 1167, 554 N.Y.S.2d 370, lv. denied 76 N.Y.2d 706, 560 N.Y.S.2d 988, 561 N.E.2d 888). If, however, the agency determination is a quasi-judicial one, namely, made "as a result of a hearing held, and at which evidence was taken, pursuant to direction by law", that determination will be upheld if, on the entire record, it is supported by substantial evidence (CPLR 7803[4]; see, Matter of Pell v. Board of Educ., supra; Matter of Colton v. Berman, 21 N.Y.2d 322, 329, 287 N.Y.S.2d 647, 234 N.E.2d 679; see also, McLaughlin, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR C7801:2, at 26). This includes hearings required either by constitutional due process (see, Matter of County of Cayuga v. McHugh, 4 N.Y.2d 609, 616, 176 N.Y.S.2d 643, 152 N.E.2d 73) or by statute and accompanying regulations (see, Matter of Horoshko v. Ambach, 122 A.D.2d 447, 448, 504 N.Y.S.2d 838; Matter of Magro v. Ambach, 122 A.D.2d 321, 503 N.Y.S.2d 924, lv. denied 69 N.Y.2d 609, 516 N.Y.S.2d 1025, 509 N.E.2d 360).

In the instant case, once the panel found that a substantial question existed as to the applicant's moral character and the applicant submitted a written request, the Education Department was required to provide not merely an opportunity to be heard (cf., Matter of Colton v. Berman, supra; Matter of County of Cayuga v. McHugh, supra; Matter of Rochester Colony v. Hostetter, 19 A.D.2d 250, 252-253, 241 N.Y.S.2d 210), but a full evidentiary hearing at which the applicant could be represented by an attorney, produce and cross-examine witnesses, and present evidence supporting his good moral character (8 NYCRR 28.4, 28.5). Hence, the resulting determination must be supported by substantial evidence and Supreme Court properly transferred the case to this court.

Examination of the record discloses that the factors required to be considered when a prospective licensee has been previously convicted of a criminal offense (Correction Law § 753[1]...