Block v. Ambach

• Decision Date: 30 March 1989
• Citation: 537 N.E.2d 181,540 N.Y.S.2d 6,73 N.Y.2d 323
• Parties: , 537 N.E.2d 181 In the Matter of Jay BLOCK, Appellant, v. Gordon M. AMBACH, as Commissioner of Education of the State of New York, et al., Respondents. In the Matter of Norman M. ACKERMAN, Appellant, v. Gordon M. AMBACH, as Commissioner of Education of the State of New York, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 6

540 N.Y.S.2d 6

73 N.Y.2d 323, 537 N.E.2d 181

In the Matter of Jay BLOCK, Appellant, v. Gordon M. AMBACH, as Commissioner of Education of the State

of New York, et al., Respondents.

In the Matter of Norman M. ACKERMAN, Appellant, v. Gordon M. AMBACH, as Commissioner of Education of the State

of New York, Respondent.

Court of Appeals of New York.

March 30, 1989.

Carmen J. Valvo, Rome, for appellant in the first above-entitled proceeding.

Robert Abrams, Atty. Gen. (John J. O'Grady and O. Peter Sherwood, New York City, of counsel), for respondents in the first above-entitled proceeding.

Anthony Z. Scher, Scarsdale, for appellant in the second above-entitled proceeding.

Robert Abrams, Atty. Gen. (Darren O'Connor, O. Peter Sherwood and Lawrence S. Kahn, New York City, of counsel), for respondent in the second above-entitled proceeding.

OPINION OF THE COURT

ALEXANDER, Judge.

The primary issue presented by these appeals is whether the charges of misconduct underlying these administrative disciplinary proceedings against petitioners satisfied the notice requirement of due process, notwithstanding that the specific dates of misconduct were not alleged. We conclude that in the circumstances of these administrative proceedings, the requirements of due process were satisfied because sufficient notice of the charges was given to each petitioner to enable each to adequately prepare and present a defense. Accordingly, we affirm the judgments of the Appellate Division in both cases.

I

Matter of Block v Ambach

A 16-year-old female who had attempted suicide was admitted to Marcy Psychiatric Center (MPC) in 1981 and remained a patient at the facility until her discharge in June 1982. During that time, petitioner Block was employed at MPC as a licensed practical nurse and a registered professional nurse. In October 1984, based on complaints made by the former patient, petitioner was charged by the Office of Professional Discipline of the Education Department with professional misconduct in violation of Education Law § 6509(9) and 8 NYCRR 29.1(b)(5) for having had a sexual relationship with the complainant while she was hospitalized and after her discharge. Specifically, petitioner was charged with engaging in sexual intercourse with complainant on five or more occasions during a four-month period while she was an inpatient at the facility and engaging in sexual intercourse with her during a five-month period after she had been discharged. ¹ The charges also alleged that petitioner committed professional misconduct by verbally harassing complainant to induce her to cooperate by threatening, in November 1981, to "fix it" so that she would never leave the facility (Education Law § 6509[9]; 8 NYCRR 29.2[2] ). Finally, petitioner was charged with gross negligence in failing to provide the requisite nursing care to complainant (Education Law § 6509[9]; 8 NYCRR 29.1[b][1] ).

Petitioner's contention, inter alia, that these charges were insufficiently specific because of the excessively vague time periods alleged was rejected by the Hearing Panel of the Department of Education and he was found guilty of each of the charges. Respondent Commissioner of Education adopted these findings and revoked petitioner's licenses to practice nursing.

Petitioner instituted this article 78 proceeding in the Appellate Division (see, Education Law § 6510[5] ), seeking annulment of respondent's determination and a determination that State Administrative Procedure Act § 301(2)(d) is unconstitutional because it deprives the courts of jurisdiction to determine whether administrative charges satisfy due process. The Appellate Division confirmed respondent's determination and dismissed the petition (140 A.D.2d 814, 528 N.Y.S.2d 204).

Matter of Ackerman v. Ambach

Petitioner Ackerman was licensed to practice medicine in New York in 1948. In the late 1950's, he cofounded the Association for Counseling and Therapy (ACT) and served as its psychiatrist and director. Between 1969 and 1975, under the pretense of providing psychiatric treatment at ACT, petitioner allegedly engaged in numerous sexual acts with patients and encouraged lewd and lascivious conduct during both individual and group therapy sessions. As a result of complaints filed by several of the individuals who had been involved in these activities, the State Board for Professional Medical Conduct charged petitioner with professional misconduct and instituted disciplinary proceedings. He was charged with the fraudulent practice of medicine (Education Law § 6509[2] ) in inducing two of his patients (A and B) to engage in sexual intercourse with him, to engage in lewd conduct and to use inappropriate drugs during time periods covering 26 months, 78 months, 46 months and 53 months. ² Petitioner was also charged with gross negligence or incompetence in his practice of the profession (Education Law § 6509[2] ), in that at various times during a 78-month time period he displayed guns to A, verbally harassed and abused her and induced her to participate in group sexual activity and to use illicit drugs. The charges further alleged gross negligence in that petitioner engaged in essentially the same conduct with B over a 39-month time period. Additionally, petitioner was charged with practicing negligently on more than one occasion (Education Law § 6509[2] ) as well as with moral unfitness to practice (Education Law § 6509[2] ), the latter based on his patent moral unfitness and his abuse of A and B.

Thirty-five witnesses, including A, B and a third complainant, D, testified before a Hearing Panel of the State Board for Professional Medical Conduct. At this hearing, which continued over a period of some six years, petitioner denied that A, B and D were his patients or that he had engaged in sexual activity with any of them. Instead, he claimed that the group sessions he led were merely gatherings of people engaged in the discussion of a variety of topics and did not involve any form of psychotherapy treatment. The Panel found, inter alia, that A and B were petitioner's patients; that petitioner had conducted private sessions with A "on or about the year 1973", and "on numerous occasions" instigated and participated in sexual activities involving that patient; that he had sexual relations with her on a particular day when petitioner's wife was engaged in a radio broadcast; and that A had sexual intercourse and oral sex with petitioner "on approximately 25 occasions". With only minor exceptions, the Panel sustained the charges against petitioner and recommended permanent revocation of his license and a $25,000 fine. After reviewing the Panel's report, the Commissioner of Health recommended to the Board of Regents that the Panel's findin of fact, conclusions of law and recommendation of license revocation be accepted in full.

The Regents Review Committee rejected the Panel's determination to sustain the specification charging moral unfitness (Education Law § 6509[9] ) and modified other conclusions, not relevant here, but nevertheless recommended that petitioner's license be revoked. Respondent accepted the Committee's recommendations and ordered revocation of petitioner's license.

Petitioner instituted this article 78 proceeding in the Appellate Division (see, Education Law § 6510-a[4] ), seeking to annul respondent's determination. As it had in Block, the Appellate Division confirmed respondent's determination and dismissed the petition (142 A.D.2d 842, 530 N.Y.S.2d 893).

On these appeals, both petitioners argue that the administrative determinations must be annulled as unsupported by substantial evidence and because the statement of charges in each case failed to adequately specify the dates of their alleged misconduct and therefore violated due process. ³ They argue that the standard of specificity constitutionally required of criminal indictments should be applied in these administrative proceedings.

Block complains that he was deprived of an opportunity to present meaningful defenses of alibi and impossibility because the charges spanned a time period of some 13 months and were vague as to the number of incidents, their locations, and the precise dates of the occurrences. He argues that under the authority of our decision in People v. Morris, 61 N.Y.2d 290, 473 N.Y.S.2d 769, 461 N.E.2d 1256), the charges should have been dismissed because the notice requirement of due process was not satisfied.

Ackerman similarly argues that the charges against him cannot be sustained because he was deprived of due process in that the charges spanned a period of more than six years without indicating any specific dates of the alleged misconduct, and, moreover, no witness was able to testify as to any specific dates on which any of the alleged acts took place. He contends that he was thus deprived of the ability to assert an alibi defense or to produce contrary evidence.

For the reasons that follow we reject these contentions.

II

It is axiomatic that due process precludes the deprivation of a person's substantial rights in an administrative proceeding because of uncharged misconduct (Matter of Gelfand, 70 N.Y.2d 211, 216, 518 N.Y.S.2d 950, 512 N.E.2d 533; Matter of Murray v. Murphy, 24 N.Y.2d 150, 157, 299 N.Y.S.2d 175, 247 N.E.2d 143) and it necessarily follows, therefore, that a respondent in such a proceeding is entitled to fair notice of the charges against him or her so that he or she may prepare and present an adequate defense and thereby have an opportunity to be heard (Matter of Fitzgerald v. Libous, 44 N.Y.2d 660, 661, 405 N.Y.S.2d 32, 376 N.E.2d 192; Matter of Shapiro v. Board of Regents, 16 N.Y.2d 783, 784, 262 N.Y.S.2d 503, 209 N.E.2d 821; Matter of Hecht v. Monaghan, 307 N.Y. 461, 470, 121 N.E.2d 421). Indeed, Education Law § 6510(1)(c) provides that charges of professional misconduct brought by the Education Department "shall state concisely the material facts" underlying the...