Doctor v. N.Y. State Office of Alcoholism

• Decision Date: 05 December 2013
• Citation: 112 A.D.3d 1020,2013 N.Y. Slip Op. 08169,976 N.Y.S.2d 329
• Parties: In the Matter of Amos DOCTOR, Petitioner, v. NEW YORK STATE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES et al., Respondents.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 1020

976 N.Y.S.2d 329

2013 N.Y. Slip Op. 08169

In the Matter of Amos DOCTOR, Petitioner,

v.NEW YORK STATE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES et al., Respondents.

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

Dec. 5, 2013.

Lisa M. King, New York State Public Employees Federation, Albany (Alison M. Thorne of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), for respondents.

Before: ROSE, J.P., LAHTINEN, GARRY and EGAN JR., JJ.

EGAN JR., J.

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 Commissioner of Alcoholism and Substance Abuse Services which revoked petitioner's credential.

At all times relevant to this proceeding, petitioner was employed by respondent Office of Alcoholism and Substance Abuse Services (hereinafter OASAS) as an Addictions Counselor I at the Bronx Addiction Treatment Center in Bronx County. Pursuant to the terms of his employment, petitioner was required to maintain a Credentialed Alcoholism and Substance Abuse Counselor (hereinafter CASAC) credential, which is issued by OASAS. Petitioner received his CASAC credential in 2004 and successfully renewed that credential, as required, in 2006 and 2008.

In February 2009, OASAS issued a notice of discipline to petitioner alleging four specifications of misconduct and seeking termination of petitioner's employment; three of the charges alleged an inappropriate relationship with a female client at the facility (hereinafter client A), and the remaining charge alleged that petitioner created a hostile work environment with regard to his purported attempt to establish a personal relationship with an intern at the facility. An arbitration hearing ensued, at which both client A and the intern appeared and testified. At the conclusion of that hearing, the arbitrator dismissed all four charges and specifications against petitioner finding, among other things, that the testimony offered by client A and the intern was not credible. Specifically, the arbitrator noted that client A admitted that she had “feelings” for petitioner and that she had acknowledged—on a self-assessment form completed in connection with her treatment—that she was only sometimes honest with herself and others. Additionally, the arbitrator found that not only did the intern delay in reporting the allegedly offending conduct for almost one year but, once the incident was reported, no action was taken by facility staff—prompting the arbitrator to “question the entire matter,” including the credibility of the staff member to whom the alleged misconduct was reported. Finally, the arbitrator called into question the veracity of an unsworn witness statement given by another client at the facility (hereinafter client B).¹

In the interim, and while the arbitration proceeding was still pending, petitioner's supervisor lodged a complaint against petitioner alleging violations of certain canons of ethics relative to his CASAC credential. A review of the CASAC complaint and the prior notice of discipline reveals that both documents were predicated upon substantially the same conduct involving client A and the intern—although the CASAC complaint raised additional allegations with respect to an incident wherein petitioner purportedly made an inappropriate comment regarding certain clothing worn by another client at the facility (hereinafter client C). Following a hearing, at which none of the individuals who were either targets of the alleged misconduct (clients A and C and the intern) or a witness thereto (client B) testified, the Hearing Officer—relying primarily upon the testimony offered by OASAS's investigator—recommended that petitioner's CASAC credential be revoked. Respondent Commissioner of Alcoholism and Substance Abuse accepted the Hearing Officer's recommendations and revoked petitioner's CASAC credential; OASAS, in turn, terminated petitioner's employment based upon his failure to maintain his CASAC credential. Petitioner then commenced this proceeding pursuant to CPLR article 78 to challenge that determination.

Petitioner's primary contention on review is that the determination revoking his CASAC credential is not supported by substantial evidence in the record as a whole—specifically, that the hearsay evidence adduced at the hearing was insufficient to establish the alleged ethical violations. Substantial evidence has long been defined as “such relevant proof as a reasonablemind may accept as adequate to support a conclusion or ultimate fact” ( Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443, 522 N.Y.S.2d 478, 517 N.E.2d 193 [1987] [internal quotation marks and citations omitted]; accord Matter of Dewitt v. New York State Bd. of Law Examiners, 90 A.D.3d 1457, 1457, 935 N.Y.S.2d 726 [2011], lv. denied18 N.Y.3d 810, 2012 WL 1085572 [2012]; Matter of Diehsner v. Schenectady City School Dist., 152 A.D.2d 796, 797, 543 N.Y.S.2d 576 [1989]; see Matter of Rauschmeier v. Village of Johnson City, 91 A.D.3d 1080, 1082, 937 N.Y.S.2d 373 [2012], lv. denied19 N.Y.3d 802, 2012 WL 1538361 [2012] ). In this regard, an administrative determination may be based entirely upon hearsay evidence ( see Matter of JMH, Inc. v. New York State Liq. Auth., 61 A.D.3d 1260, 1261, 877 N.Y.S.2d 737 [2009]; Matter of S & S Pub, Inc. v. New York State Liq. Auth., 49 A.D.3d 654, 655, 852 N.Y.S.2d 804 [2008] )—provided such evidence is “sufficiently relevant and probative” ( Matter of Diehsner v. Schenectady City School Dist., 152 A.D.2d at 797, 543 N.Y.S.2d 576; see Matter of A–Plus v. New York State Lottery, 71 A.D.3d 1372, 1373, 897 N.Y.S.2d 568 [2010], lv. denied14 N.Y.3d 714, 2010 WL 2400414 [2010]; Matter of Café La China Corp. v. New York State Liq. Auth., 43 A.D.3d 280, 281, 841 N.Y.S.2d 30 [2007] ) or ...