NASSAU HEALTH v. ETHICS COMMN

CourtUnited States State Supreme Court (New York)
Citation764 N.Y.S.2d 795,196 Misc.2d 867
Decision Date04 August 2003
PartiesNASSAU HEALTH CARE CORPORATION, Petitioner,<BR>v.<BR>NEW YORK STATE ETHICS COMMISSION, Respondent.

196 Misc.2d 867
764 N.Y.S.2d 795

NASSAU HEALTH CARE CORPORATION, Petitioner,
v.
NEW YORK STATE ETHICS COMMISSION, Respondent.

August 4, 2003.


[196 Misc.2d 868]

Steven Cohn, P.C., Carle Place, for petitioner.

Eliot Spitzer, Attorney General, New York City, for respondent.

OPINION OF THE COURT

LEONARD B. AUSTIN, J.

By order dated May 22, 2003, this court converted this action into a special proceeding pursuant to CPLR 103 (c), amended the caption and denied respondent's motion to transfer the proceeding to Albany County.

In its pleading (now the petition, formerly the complaint), petitioner Nassau Health Care Corporation (NHCC) seeks review of the determination by respondent the New York State Ethics Commission (the Commission) that bars and precludes NHCC's corporate counsel from attending interviews by the Commission in its investigation of alleged ethical wrongdoing by NHCC employees. NHCC also seeks an injunction to implement a determination in its favor.

Background

NHCC is a public benefit corporation created in 1997 to provide health care services for the benefit of Nassau County residents (Public Authorities Law § 3401 [1]). It operates Nassau University Medical Center in East Meadow, New York. The Commission was established pursuant to the Ethics in Government Act of 1987 and commenced operations in 1989. It has jurisdiction over state employees. (Executive Law § 94.) In May 2002, the Commission became aware of potential ethical violations of Public Officers Law §§ 73 and 74 by NHCC employees.

The instant dispute arises out of the Commission's investigation of these potential ethical violations, namely, allegations that NHCC employees improperly accepted gifts and benefits from five vendors with whom NHCC was negotiating for the installation of a new multimillion dollar computer software system that would revolutionize access to medical records, x-ray films, MRI films and CT scans. For the most part, the gifts and benefits at issue included meals at restaurants, plane fare to and from the vendor's site, hotel accommodations in

[196 Misc.2d 869]

connection with on-site reviews by NHCC employees of the subject software system and meals purchased for NHCC employees when the vendors visited NHCC. NHCC states that "due to budgetary constraints" certain employees "considered it fiscally appropriate to either request or allow the vendors to underwrite the expenses incurred * * * as part o[f] their on-site review." (Cohn affidavit at 3.) State employees are prohibited from directly or indirectly soliciting, accepting or receiving any gift having a value of $75 or more. (Public Officers Law § 73 [5].)

The Commission commenced and proceeded with its investigation, but has refrained from seeking to interview any NHCC employees in the absence of NHCC counsel, pending resolution of this proceeding.

When the Commission determines that there is reasonable cause to believe that a violation of the law has occurred, it is empowered to issue a notice of reasonable cause (notice). On April 18, 2003, the Commission issued notices to seven NHCC employees in connection with gifts and benefits in the following amounts: $216.55; $699.60; $883.02; $1,094.03; $1,375.72; $1,993.73; and $4,010.28 (see notices annexed to the Sleight affidavit, exhibit A). After NHCC had learned of the money spent by vendors on its employees, the money was promptly returned.

In its answer herein, the Commission alleges three objections in point of law, to wit: (1) failure to state a cause of action, (2) lack of standing, and (3) venue. As the venue objection has already been determined, the court turns to the other two objections.

Discussion A. Failure to State a Cause of Action

In considering an objection of failure to state a cause of action in a CPLR article 78 proceeding, all of the allegations in the petition are to be deemed true. (Matter of Zaidins v Hashmall, 288 AD2d 316 [2d Dept 2001]; Matter of De Paoli v Board of Educ., 92 AD2d 894 [2d Dept 1983].) Where, as here, the allegations in the petition demonstrate the existence of a bona fide controversy which should be addressed, dismissal pursuant to CPLR 3211 (a) (7) and 7804 (f) should be denied. (Zaidins v Hashmall, supra.) Here, by challenging the determination by the Commission to exclude its corporate attorneys from employee interviews as arbitrary and capricious, NHCC has plainly demonstrated a justiciable controversy for article 78 relief. (See generally, Kelly v New York State Ethics Commn., 161 Misc 2d 706 [Sup Ct, Albany County 1994].)

[196 Misc.2d 870]

B. Standing

To establish standing, NHCC need only show that the Commission's action will have a harmful effect on it and that the interest asserted is arguably within the zone of interest to be protected by the statute at issue. (See, Matter of Dairylea Coop. v Walkley, 38...

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2 practice notes
  • Alaska State Comm'n for Human Rights v. Anderson, Supreme Court No. S-16197
    • United States
    • Supreme Court of Alaska (US)
    • August 31, 2018
    ...v. Talbot Cty. Det. Ctr. , 370 Md. 115, 803 A.2d 527, 543 (2002) ; see also Nassau Health Care Corp. v. N.Y. State Ethics Comm’n , 196 Misc.2d 867, 764 N.Y.S.2d 795, 800 (N.Y. Sup. Ct. 2003) ("[T]he court is compelled to conclude that the Commission’s determination to exclude corporate......
  • Broadway Stages, Ltd. v. N.Y.S. Joint Comm'n on Pub. Ethics, 907941-19
    • United States
    • United States State Supreme Court (New York)
    • July 8, 2020
    ...restrictions and investigating violations thereof (see Executive Law § 94 ; Nassau Health Care Corp. v. New York State Ethics Commn. , 196 Misc. 2d 867, 872-873, 764 N.Y.S.2d 795 [Sup. Ct., Nassau County 2003] [Austin, J.] ), JCOPE's reasonable interpretation of the Lobbying Act should be a......
2 cases
  • Alaska State Comm'n for Human Rights v. Anderson, Supreme Court No. S-16197
    • United States
    • Supreme Court of Alaska (US)
    • August 31, 2018
    ...v. Talbot Cty. Det. Ctr. , 370 Md. 115, 803 A.2d 527, 543 (2002) ; see also Nassau Health Care Corp. v. N.Y. State Ethics Comm’n , 196 Misc.2d 867, 764 N.Y.S.2d 795, 800 (N.Y. Sup. Ct. 2003) ("[T]he court is compelled to conclude that the Commission’s determination to exclude corporate......
  • Broadway Stages, Ltd. v. N.Y.S. Joint Comm'n on Pub. Ethics, 907941-19
    • United States
    • United States State Supreme Court (New York)
    • July 8, 2020
    ...restrictions and investigating violations thereof (see Executive Law § 94 ; Nassau Health Care Corp. v. New York State Ethics Commn. , 196 Misc. 2d 867, 872-873, 764 N.Y.S.2d 795 [Sup. Ct., Nassau County 2003] [Austin, J.] ), JCOPE's reasonable interpretation of the Lobbying Act should be a......

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