Caselnova v. New York State Dept. of Health

• Decision Date: 23 January 1997
• Citation: 653 N.Y.S.2d 398,235 A.D.2d 864
• Parties: In the Matter of Vito E. CASELNOVA, Petitioner, v. NEW YORK STATE DEPARTMENT OF HEALTH, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 398

653 N.Y.S.2d 398

235 A.D.2d 864

In the Matter of Vito E. CASELNOVA, Petitioner, v. NEW YORK STATE DEPARTMENT OF HEALTH, Respondent.

Supreme Court, Appellate Division,

Third Department.

Jan. 23, 1997.

Gary Greenwald (Stephen L. Oppenheim, of counsel), Goshen, for petitioner.

Dennis C. Vacco, Attorney General (Michael Melkonian, of counsel), New York City, for respondent.

Before CARDONA, P.J., and MIKOLL, MERCURE, CREW and YESAWICH, JJ.

MIKOLL, Justice.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Public Health Law § 230-c [5] ) to review a determination of the Hearing Committee of the State Board for Professional Medical Conduct which, inter alia, suspended petitioner's license to practice medicine in New York for two years.

Petitioner was charged with professional misconduct pursuant to Education Law § 6530(9)(e). A hearing was held on July 6, 1995 before the Hearing Committee of the State Board for Professional Medical Conduct. The charges were based on petitioner's acknowledgement of violations of Public Health Law article 33 and 10 NYCRR 80.62(b), which involved his prescribing Vicoden and Fastin drugs to three patients without preparing and maintaining a complete patient record. The sole evidence before the Hearing Committee was petitioner's stipulation of consent to the Public Health Law article 33 violations.

The Hearing Committee sustained the charges and suspended petitioner's license to practice medicine for two years, stayed the suspension, prohibited him from writing prescriptions for controlled substances for two years, ordered him to complete continuing medical education and placed him on probation.

Petitioner appealed the determination to the Administrative Review Board for Profession Medical Conduct (hereinafter ARB). Petitioner failed to file a brief and deeming the appeal withdrawn, the ARB ordered the findings of the Hearing Committee to be final.

Petitioner commenced the instant CPLR article 78 proceeding seeking, inter alia, to annul the administrative determination. Petitioner challenges the outcome on due process grounds, contending that he was not given notice that his ability and competence would be considered by the Hearing Committee. While we acknowledge that petitioner must receive adequate notice of the charges against him to defend against them (see, Matter of Block v. Ambach, 73 N.Y.2d 323, 332, 540 N.Y.S.2d 6, 537 N.E.2d 181), we reject petitioner's contention that he lacked notice in the instant proceeding.

The record indicates that prior to the hearing, petitioner was served a statement of charges which specifically indicated that the professional misconduct was based on the finding that he was in violation of article 33 of the Public Health Law. It was also indicated to him, by notice of referral, that the proceeding could result in a determination that suspended or revoked his license to practice medicine in New York. During the hearing, petitioner introduced evidence relevant to his competency and ability and was given a chance to testify. The record belies his contention of lack of awareness of the issue involved.

Petitioner also contends that the determination of the ARB is against the weight of evidence. Although the petition seeks review of the ARB decision, since petitioner failed to appeal to the ARB, our review is limited to ascertaining whether the Hearing Committee's determination is supported by substantial evidence. We find that the stipulation of admission of violation, entered by petitioner to the Public Health Law article 33 charges, is...