Meyer v. Zucker

• Decision Date: 16 July 2020
• Docket Number: 530158
• Citation: 185 A.D.3d 1265,128 N.Y.S.3d 291
• Parties: In the Matter of Jill S. MEYER, Appellant, v. Howard A. ZUCKER, as Commissioner of Health, Respondent.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 1265
128 N.Y.S.3d 291

In the Matter of Jill S. MEYER, Appellant,
v.
Howard A. ZUCKER, as Commissioner of Health, Respondent.

530158

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

Calendar Date: June 8, 2020
Decided and Entered: July 16, 2020

128 N.Y.S.3d 292

Wolin & Wolin, Jericho (Alan E. Wolin of counsel), for appellant.

Letitia James, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Clark, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

185 A.D.3d 1265

Appeal from a judgment of the Supreme Court (Cholakis, J.), entered May 22, 2019 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner, a licensed psychiatrist, forwarded a letter to the Office of Professional Medical Conduct (hereinafter OPMC) alleging that certain medical institutions and their leadership

185 A.D.3d 1266

maliciously prevented her from obtaining employment as a psychiatrist and requested OPMC to investigate her allegations. OPMC denied her request to investigate on the basis that petitioner's allegations were not medical misconduct as defined in Education Law § 6530. Petitioner commenced this CPLR article 78 proceeding seeking to invalidate the determination denying her request to investigate and sought to compel OPMC to investigate her alleged claims.

Respondent moved to dismiss the petition on the basis that, among other things, petitioner lacked standing to challenge OPMC's determination and that the petition failed to state facts necessary to support the issuance of a mandamus to compel. Supreme Court granted respondent's motion to dismiss, finding that petitioner's allegations essentially claimed that various individuals and entities improperly colluded to prevent her from being hired or retained as a psychiatrist. As these types of claims "do not fall within the ambit of [ Education Law § 6530 ]," OPMC was not under a legal duty to investigate, and that their refusal to do so was not arbitrary and capricious. Petitioner appeals.

Under CPLR 7803(1), a petitioner may challenge an administrative body's failure to perform a duty "enjoined upon it by law." This claim is in the nature of a writ of mandamus to compel, which "is an extraordinary remedy that lies only to compel the performance of acts which are ministerial and mandatory, not discretionary, and only when there is a clear right to the relief sought" ( Matter of Ethington v. County of Schoharie, 173 A.D.3d 1504, 1505, 104 N.Y.S.3d 749 [2019] [internal quotation marks, brackets and citations omitted]; see Matter of Green v. Annucci, 153 A.D.3d 1099, 1100, 61 N.Y.S.3d 375 [2017], lv denied 31 N.Y.3d...