Lap v. Axelrod

• Decision Date: 06 October 1983
• Parties: In the Matter of Richard LAP, Respondent-Appellant, v. David AXELROD, as Commissioner of Health of the State of New York, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 920

467 N.Y.S.2d 920

95 A.D.2d 457

In the Matter of Richard LAP, Respondent-Appellant, v. David AXELROD, as Commissioner of Health of the State of New York, Appellant-Respondent.

Supreme Court, Appellate Division Third Department.

Oct. 6, 1983.

Robert Abrams, Atty. Gen., Albany, (Diane DeFurio Foody, Asst. Atty. Gen., Albany, of counsel), for appellant-respondent.

O'Connell & Aronowitz, Albany, (Cornelius D. Murray, Albany, of counsel), for respondent-appellant.

Before SWEENEY, J.P., and KANE, CASEY, WEISS and LEVINE, JJ.

WEISS, Justice.

The underlying facts on the instant appeal are set forth fully in Matter of Lap v. Axelrod, 97 A.D.2d 583, 467 N.Y.S.2d 917 (decided herewith). In the instant case, respondent appeals Special Term's annulment of his order of revocation of petitioner's operating certificate upon the authority of Matter of Hodes v. Axelrod, 56 N.Y.2d 930, 453 N.Y.S.2d 607, 439 N.E.2d 323, which case barred automatic revocation following conviction where a certificate of relief from disabilities and forfeitures had been issued pursuant to section 701 (subd. 2) of the Correction Law. Petitioner has appealed from so much of the order as provides that respondent may take such further future action as is not contrary to the decision of Special Term.

On July 21, 1983, chapter 584 of the Laws of 1983 was signed into law by the Governor. That law amends section 2806 (subd. 5) of the Public Health Law and section 701 (subd. 2) of the Correction Law to provide that the operating certificate of a nursing home operator who has been convicted of a felony relating to the nursing home industry shall be automatically revoked, notwithstanding the issuance of a certificate of relief from disabilities pursuant to article 23 of the Correction Law. The amendment took effect immediately and applies to all operating certificates even though the felony conviction may have been entered and the certificate of relief from disabilities granted prior to the effective date. The amendment overcomes the effect of Matter of Hodes v. Axelrod, 56 N.Y.2d 930, 453 N.Y.S.2d 607, 439 N.E.2d 323, supra and is intended to apply to revocations already made and to resurrect those revocations already annulled by the courts on the basis of that case.

Consistent with the rules of appellate review, we decide this case upon the basis of the law which exists today (Matter of Board of Trustees of Maplewood--Colonie Common School Dist. [Maplewood Teachers' Assn.], 57 N.Y.2d 1025, 1027, 457 N.Y.S.2d 475, 443 N.E.2d 949; Matter of Hodes v. Axelrod, 56 N.Y.2d 930, 932, 453 N.Y.S.2d 607, 439 N.E.2d 323, supra; Strauss v. University of State of N.Y., 2 N.Y.2d 464, 467, 161 N.Y.S.2d 97, 141 N.E.2d 595, app. dsmd. 355 U.S. 394, 78 S.Ct. 382, 2 L.Ed.2d 355; see Pataki v. Kiseda, 80 A.D.2d 100, 102, 437 N.Y.S.2d 692, mot. for lv. to app. dsmd. 54 N.Y.2d 831; McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 55) and hold that the judgment annulling the commissioner's determination must be reversed and the petition dismissed.

At oral argument, petitioner attacked and was given the opportunity to submit a brief on the constitutionality of section 3 of chapter 584 of the Laws of 1983. He urged that it should not be retroactively applied to him and that, in any event, he was entitled to the benefit of a "special facts exception" precluding its application. Petitioner's constitutional arguments are without merit. The issuance of a certificate of relief from disabilities and forfeitures pursuant to section 701 (subd. 2) of the Correction Law did not create a vested right to be free from license revocation based upon his conviction. The statute, as it then existed, prevented only automatic revocation (see Matter of Hodes v. Axelrod, 56 N.Y.2d 930, 453 N.Y.S.2d 607 439 N.E.2d 323, supra; see, also, Matter of Alaimo v. Axelrod, 57 N.Y.2d 881, 456 N.Y.S.2d 47, 442 N.E.2d 445). Subdivision 3 of section 701 of the Correction Law explicitly states that a certificate shall not in any way prevent an administrative or licensing body from relying upon the conviction specified therein as the basis for the exercise of its discretionary power to suspend or revoke any license. The right that vested, not applicable in this case, was to be free from automatic revocation (see Matter of Carillo v. Axelrod, 79 A.D.2d 772, 773, 435 N.Y.S.2d 65, mot. for lv. to app. den. 53 N.Y.2d 607, 440 N.Y.S.2d 1027, 423 N.E.2d 405). Nor has petitioner been deprived of any property right without just compensation, a license being merely a personal privilege subject to reasonable restrictions and to revocation by an issuing authority (People ex rel. Lodes v. Department of Health, 189 N.Y. 187, 83 N.E. 187; Matter of Hodes v. Axelrod, 84 A.D.2d 895, 896, 444 N.Y.S.2d 769, revd. on other grounds 56 N.Y.2d 930, 453 N.Y.S.2d 607, 439 N.E.2d 323). The State may change the right to hold a license which it has granted or the...