Khan v. Nys Dept. of Health, 3

• Decision Date: 30 August 2001
• Docket Number: 85924,3
• Parties: In the Matter of MUHAMMAD AZAM KHAN, Petitioner, v NEW YORK STATE DEPARTMENT OF HEALTH et al., Respondents. 85924 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT Calendar Date:
• Court: New York Supreme Court — Appellate Division

In the Matter of MUHAMMAD AZAM KHAN, Petitioner v NEW YORK STATE DEPARTMENT OF HEALTH et al., Respondents

85924

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

Calendar Date: June 1, 2000

Decided and Entered: August 30, 2001

Mauro & Goldberg (Katherine Herr Solomon of counsel), Great Neck, for petitioner.

Eliot Spitzer, Attorney-General (Samuel S. Chin of counsel), New York City, for respondents.

MEMORANDUM AND JUDGMENT

Before: Mercure, J.P., Crew III, Mugglin, Rose and Lahtinen, JJ.

Crew III, J.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Public Health Law § 230-c [5]) to review a determination of respondent Administrative Review Board for Professional Medical Conduct which revoked petitioner's license to practice medicine in New York.

When this matter was last before us, we held that a 1997 Arizona consent agreement should not have been given collateral estoppel effect and, accordingly, modified the determination of respondent Administrative Review Board for Professional Medical Conduct (hereinafter the ARB) and remitted the matter for a redetermination of the penalty imposed (274 A.D.2d 784). Upon appeal, the Court of Appeals reversed and remitted the matter to this Court for determination of the remaining issues not reached upon our prior review (___ N.Y.2d ___ [July 2, 2001]).

Initially, with regard to petitioner's contention that the findings of the Hearing Committee should be annulled because they are not supported by substantial evidence, we need note only that our review of the Hearing Committee's decision is precluded inasmuch as petitioner sought review of such decision from the ARB. This Court's power to review the Hearing Committee's decision extends only to those situations where review thereof is not sought from the ARB (see, Matter of Weg v De Buono, 269 A.D.2d 683, 685-686, lv denied 94 N.Y.2d 764).

Next, contrary to petitioner's contention, review of the ARB's determination is limited to whether the decision is "'arbitrary and capricious, affected by an error of law or an abuse of discretion'" (Matter of Pisnanont v New York State Bd. for Professional Med. Conduct, 266 A.D.2d 592, 593, quoting Matter of Spartalis v State Bd. for Professional Med. Conduct, 205 A.D.2d 940, 942, lv denied 84 N.Y.2d 807). Accordingly, our inquiry distills to whether the ARB's determination has a rational basis and is factually supported (see, Matter of Moss v Chassin, 209 A.D.2d 889, 891, ...