Jacoby v. Nys Bd. Prof'l Med. Misconduct
| Decision Date | 06 June 2002 |
| Docket Number | 3,90174 |
| Parties | In the Matter of A. ALEXANDER JACOBY, Petitioner, v NEW YORK STATE BOARD FOR PROFESSIONAL MEDICAL MISCONDUCT, Respondent. 90174 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT Calendar Date: |
| Court | New York Supreme Court — Appellate Division |
A. Alexander Jacoby, New York City, petitioner pro se.
Eliot Spitzer, Attorney General, New York City (Kristin R. White of counsel), for respondent.
Before: Mercure, J.P., Crew III, Mugglin, Rose and Lahtinen, JJ.
Proceeding pursuant to CPLR article 78 () to review a determination of the Administrative Review Board for Professional Medical Conduct which revoked petitioner's license to practice medicine in New York.
Petitioner's license to practice medicine was suspended in August 1999 for his failure to repay Federal student loans. When he failed to surrender his license or respond to letters from the Department of Health, respondent commenced a second disciplinary proceeding against him (see, Education Law § 6530 [16], [28]). Following a hearing at which petitioner did not appear, the charges were sustained and his license was revoked. Petitioner then commenced this CPLR article 78 proceeding. Because we find merit to petitioner's claim that respondent deprived him of due process by improperly serving the notice of hearing and statement of charges against him, respondent's determination must be annulled.
The subject of a disciplinary proceeding must be afforded reasonable notice and an opportunity to be heard (see, Matter of Verdell v De Buono, 262 A.D.2d 812, 813-814). As to physicians, Public Health Law § 230 (10) (d) prescribes the following notice:
A copy of the charges and the notice of hearing shall be served on the licensee personally by the board at least twenty days before the hearing. If personal service cannot be made after due diligence and such fact is certified under oath, a copy of the charges and the notice of hearing shall be served by registered or certified mail to the licensee's last known address by the board at least fifteen days before the hearing (emphasis supplied).
Here, a notice of hearing and statement of charges were mailed to petitioner's brother and prior legal counsel, Ross Jacoby, at Jacoby's former office address. A process server then made one unsuccessful attempt to personally serve petitioner at Jacoby's same former office address, and two additional mailings were later made to that same address.
While the requirements of "due diligence" in attempting to make personal service are not rigidly prescribed (see, Hanover New England v MacDougall, 202 A.D.2d 724, 725, lv dismissed 83 N.Y.2d 907), we conclude that respondent's efforts were insufficient to afford due process under the circumstances presented here. Although Jacoby represented petitioner in the prior proceeding and received notice in the second proceeding, there is no evidence that petitioner authorized Jacoby to accept process on his behalf (see, Donaldson v Melville, 124 A.D.2d 361, 362, lv denied 69 N.Y.2d 604). If Jacoby had been so authorized, the service would still be insufficient because it was by mail rather than personal delivery (see, CPLR 308 [3]).
Respondent nevertheless contends that personal service could not reasonably be made despite due diligence, thus condoning its use of certified mailing to petitioner's "last known address". We cannot agree. There is no evidence of any reason to believe that petitioner could be served at Jacoby's former office address. Only one attempt at personal delivery was made at that address (see, Janko Pool Serv. v Berelson, 145 A.D.2d 897,...
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