Chang Liu v. State

• Decision Date: 21 February 2019
• Docket Number: 526698
• Parties: In the Matter of CHANG LIU et al., Respondents, v. STATE of New York et al., Appellants.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 1198
94 N.Y.S.3d 655

In the Matter of CHANG LIU et al., Respondents,
v.
STATE of New York et al., Appellants.

526698

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 14, 2019
Decided and Entered: February 21, 2019

Letitia James, Attorney General, Albany (Patrick Woods of counsel), for appellants.

Stewart Lee Karlin Law Group, PC, New York City (Daniel E. Dugan of counsel), for respondents.

Before: Garry, P.J., Egan Jr., Lynch, Clark and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

94 N.Y.S.3d 656

169 A.D.3d 1198

Appeal from a judgment of the Supreme Court (Ryba, J.), entered April 5, 2018 in Albany County, which partially granted petitioners' application, in a proceeding pursuant to CPLR article 78, to, among other things, annul a determination of the Commissioner of Education denying petitioners' application to register a certificate program in massage therapy.

In 2013, petitioners submitted two applications to respondent State Education Department (hereinafter SED) to register petitioner Flushing Institute of Massage Therapy as a noncredit certificate program in massage therapy. SED requested that petitioners withdraw their applications and submit a new application addressing certain deficiencies. In response, petitioners commenced a CPLR article 78 proceeding challenging SED's request. Ultimately, in 2016, the parties entered into a settlement agreement resolving the CPLR article 78 proceeding (hereinafter the 2016 settlement agreement) and, as part of the settlement, SED provided petitioners with a list of the major concerns that it had with respect to one of the 2013 applications. Thereafter, in December 2016, petitioners submitted a new application to SED (hereinafter the 2016 application) and, in April 2017, SED denied it and provided petitioners with a list of the major deficiencies it identified (hereinafter the 2017 denial). Petitioners appealed the 2017 denial to the Commissioner of Education. In their appeal, petitioners attached a new application (hereinafter the 2017 application) and alleged that they addressed each of the deficiencies listed in the 2017 denial, and requested that the

169 A.D.3d 1199

2017 application be granted. In July 2017, considering the 2017 application only, the Commissioner identified new deficiencies, found that the massage therapy program failed to comply with the program registration standards and upheld the 2017 application.

Petitioners thereafter commenced this CPLR article 78 proceeding alleging, among other things, that the Commissioner's determination should be annulled because it was arbitrary and capricious, and seeking, among other things, an order requiring SED to issue a license to petitioners to operate the massage therapy program. Supreme Court found that the Commissioner's determination was arbitrary and capricious because it was based on newly identified deficiencies not set forth in the 2017 denial and granted the petition to the extent that it annulled the Commissioner's determination and remitted the matter to SED for a determination as to whether petitioners have satisfied the deficiencies set forth in the 2017 denial. Respondents now appeal.

This Court's review of this type of administrative determination "is limited to ascertaining whether there is a rational basis for the action in question or whether it is arbitrary and capricious" ( Matter of Mid Is. Therapy Assoc., LLC v. New York State Educ. Dept., 129 A.D.3d 1173, 1175, 10 N.Y.S.3d 688 [2015] [internal quotation marks, brackets and citation omitted]; see Matter of Olean City School Dist. v. New York State Educ. Dept. , 2 A.D.3d 1111, 1113, 768 N.Y.S.2d 686 [2003] ). "Deference to the judgment of the agency, when supported by the record, is particularly appropriate when the matter under review involves a factual evaluation in the area of the agency's expertise" (

94 N.Y.S.3d 657

Matter of Warder v. Board of Regents of Univ. of State of N.Y. , 53 N.Y.2d 186, 194, 440 N.Y.S.2d 875, 423 N.E.2d 352 [1981] [citation...