First Dist. Dental Soc. v. Sencer

• Decision Date: 04 November 1982
• Parties: Application of the FIRST DISTRICT DENTAL SOCIETY, the Second District Dental Society and the Queens County Dental Society, Petitioners, For a Judgment Pursuant to Article 78 of the CPLR v. David J. SENCER, M.D., Commissioner, Department of Health, City of New York, Respondent.
• Court: New York Supreme Court

Page 734

455 N.Y.S.2d 734

116 Misc.2d 528

Application of the FIRST DISTRICT DENTAL SOCIETY, the Second

District Dental Society and the Queens County

Dental Society, Petitioners, For a Judgment Pursuant to Article 78 of the CPLR v. David J. SENCER, M.D., Commissioner, Department of Health, City of New York, Respondent.

Supreme Court, Special Term,

New York County, Part I.

Nov. 4, 1982.

Power & Monat, New York City, for petitioners; Lawrence Monat, New York City, of counsel.

Frederick A.O. Schwarz, Jr., Corp. Counsel, Carol E. Slater, Asst. Corp. Counsel, New York City, for respondent.

ALFRED H. KLEIMAN, Judge:

The petitioners, dental societies, comprised of dentists throughout New York City, pursuant to Article 78 of the CPLR, seek review and nullification of a particular directive issued by the New York City Department of Health, dated August 14, 1981. The directive in question requires all radiation installation licensees (of which petitioners are included) to make available for staff examination in each installation (e.g., dental office) "complete, current copies of Article 175 of the New York City Health Code," and states that non-availability of copies of this Article is a violation of subsection 175.01(a) (175.10) of the Code, and "that enforcement of this mandate will be implemented after October 1, 1981."

Section 175.10, as relevant to the matter at bar, provides as follows:

"(a) Posting of notices to workers:

(1) Each licensee and/or registrant shall post current copies of the following documents:

(i) the regulations in this Article;

* * * * * *

(2) If posting of a document specified in subparagraph (1), (ii) and (iv) of paragraph (1) of this subsection is not practicable, the licensee and/or registrant may post a notice which describes the document and states where it may be examined.

(3) A current copy of the notice to employees prescribed by the Department shall be posted by each licensee and/or registrant wherever individuals work in or frequent any portion of a controlled area.

(4) Documents, notices of forms posted pursuant to this section shall appear in a sufficient number of places to permit individuals engaged in work under the license and/or registration to observe them on the way to or from any particular work location to which the document applies, shall be conspicuous, and shall be replaced if defaced or altered.

* * * * * *

(b) Instructions to workers ...."

The petitioners urge the court to find that the issuance by respondents of the directive in question was arbitrary and capricious (CPLR 7803). More specifically, they have argued in their papers and in oral argument before this court that it is both impractical and unreasonable to require every dentist to post in his office the entire Article 175 of the Health Code comprising 88 pages, particularly when only a fraction of Article 175 is applicable to dental offices; that it is equally unfair and unreasonable to require each dentist to purchase the entire Health Code at a cost of at least $24; that sufficient compliance could be had, as provided by section 175.10(a)(2), by the posting of a notice describing Article 175 and stating where such document may be avaiable; and that the directive in question has no relationship to the legitimate interests of the City Health Department in protecting the health of the populace.

The respondents contend that while a merely descriptive notice as provided for under section 175.10(a)(2) may be posted, Article 175 requires the availability, at each installation (e.g., dental office) of the entire Article 175; that such requirement serves the legitimate interests of the people in safeguarding them from emergency situations concerning radiation and also is commensurate with the mandate under Article 175, of instructing employees using radiation equipment as to health protection problems involving radiation; and that the provisions concerning notice and posting of Article 175, as required through the August 14, 1981 directive, are parallel to Federal and New York State regulations regarding radiation installations. It is further asserted by respondents that the petitioners, by the instant proceeding, are improperly asking the court to reverse legislation, and in so doing, have failed to state a cause of action under CPLR Article 78.

Proceeding first to dispose of this last issue raised, the court notes, as has the Appellate Division, Third Department, that "as a general proposition legislative actions are not reviewable by article 78 proceedings," such a challenge is clearly permitted where petitioners "do not seek to challenge the constitutionality of the statute but the legality of administrative action thereunder." (Town of Arietta v. State Board of Equalization and Assessment, 37 A.D.2d 431, 432-3, 326 N.Y.S.2d 325 see, also Town of Arietta v. State Board of Equalization and Assessment, 80 A.D.2d 956, 438 N.Y.S.2d 13 ). Similarly, the petitioners herein are not questioning the constitutionality of Health Code, section 175.10 itself, but rather the respondent's August 14, 1981 directive and, therefore, the respondent's interpretation of Health Code § 175.10 as requiring the directive in question. The court has no doubt that relief by way of an Article 78 petition is available to the petitioners, and that this matter should now be resolved on its merits.

In this or, any Article 78 proceeding, "the proper test to be applied is whether there is a rational basis for the administrative order. The courts cannot interfere unless the action complained of is arbitrary and capricious" (City of Rome v. New York State Health Department, 65 A.D.2d 220, 224, 411 N.Y.S.2d 61 see, also CPLR 7803). The "arbitrary or capricious" test used in review of exercise of discretion by the administrative tribunal chiefly involves whether a particular action should have been taken or is justified and whether such action is without foundation in fact. (Pell v. Board of Ed. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321 ). The Courts have traditionally been reluctant to interfere with the determinations of administrative bodies where they are made in good faith and with some measure of justification. Accordingly, this court will adhere to the majority view that Article 78 proceedings will be successful in only the clearest of cases where an abuse of authority is present.

Further, it is necessary for the petitioner to demonstrate that the actions of the respondent, Commissioner of the Department of Health, City of New York, were both wilful and unreasonable action without consideration or in disregard of facts or without determining principle (Elwood Investors Co. v. Behme, 79 Misc.2d 910, 913, 361 N.Y.S.2d 488 (Sup.Ct., Suffolk Co. ). More precisely, whether the directive of Article 175 of the Health Code of the City of New York is arbitrary and capricious will rest, on the extent of correlation between it and the provisions of § 175.10 it purportedly carries out.

While the respondents concur with petitioners that paragraph (2) of section 175.10(a) allows the posting of a notice describing a particular document ...