Ogundu v. N.Y. Dep't of Health, State Bd. for Prof'l Med. Conduct

• Decision Date: 25 November 2020
• Docket Number: 528744
• Citation: 188 A.D.3d 1469,135 N.Y.S.3d 527
• Parties: In the Matter of Dorothy OGUNDU, Petitioner, v. State of New York DEPARTMENT OF HEALTH, STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, Respondent.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 1469

135 N.Y.S.3d 527

In the Matter of Dorothy OGUNDU, Petitioner,

v.State of New York DEPARTMENT OF HEALTH, STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, Respondent.

528744

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

Calendar Date: October 16, 2020

Decided and Entered: November 25, 2020

Dorothy Ogundu, Holliswood, petitioner pro se.

Letitia James, Attorney General, New York City (James M. Hershler of counsel), for respondent.

Before: Lynch, J.P., Mulvey, Devine, Pritzker and Colangelo, JJ.

MEMORANDUM AND JUDGMENT

Devine, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Queens County) to review a determination of the Administrative Review Board for Professional Medical Conduct revoking petitioner's license to practice medicine in New York.

Petitioner, a licensed physician, was charged in an indictment with numerous offenses arising from an alleged scheme to defraud local, state and federal governments of grant monies awarded to her not-for-profit corporation. A jury trial ended with petitioner being found guilty of 29 counts, all felonies ( People v. Ogundu, 166 A.D.3d 656, 84 N.Y.S.3d 897 [2018], lv denied 32 N.Y.3d 1208, 99 N.Y.S.3d 200, 122 N.E.3d 1113 [2019] ), after which the Commissioner of Health summarily ordered her to cease practicing medicine in New York (see Public Health Law § 230[12][b] ). The Bureau of Professional Medical Conduct simultaneously commenced a direct referral proceeding charging professional misconduct based upon the convictions (see Education Law § 6530[9][a][i] ; Public Health Law § 230[10][p] ). A Hearing Committee of respondent sustained the charge and, among other things, suspended petitioner's medical license for one year and placed her on three years of probation. Upon the cross appeals of the Bureau and petitioner, the Administrative Review Board for Professional Medical Conduct (hereinafter ARB) overturned the Hearing Committee's penalty and revoked petitioner's license to practice medicine. Petitioner commenced this proceeding in Supreme Court seeking to annul the Commissioner's summary order and the ARB's determination. Supreme Court denied respondent's cross motion to dismiss the proceeding and, observing that the only issues appropriately raised by petitioner were those involving the ARB determination, transferred the matter to this Court (see Public Health Law § 230–c [5] ).

The Commissioner's summary order expired as a result of the determination issued by the Hearing Committee and modified by the ARB (see Public Health Law § 230[12][b] ; Matter of Wootan v. Axelrod, 60 N.Y.2d 353, 360, 469 N.Y.S.2d 637, 457 N.E.2d 743 [1983] ), and we agree with Supreme Court that petitioner's contentions regarding that order are moot (see Matter of Flores v. New York State Educ. Dept., 146 A.D.2d 881, 882, 536 N.Y.S.2d 869 [1989] ). The extent to which petitioner attempts to challenge the determination of the Hearing Committee, as opposed to the ultimate determination of the ARB, is unclear. In any event, inasmuch as petitioner appealed the Hearing Committee's determination to the ARB, our review is limited to assessing "whether the ARB's determination was arbitrary and capricious, affected by error of law or an abuse of discretion" ( Matter of Arnett v. New York State Dept. of Health, 69 A.D.3d 1001, 1002, 893 N.Y.S.2d 334 [2010] [internal quotation marks, brackets and citations omitted], lv denied 14 N.Y.3d 707, 2010 WL 1707395 [2010] ; see Matter of Gutierrez v. New York State Bd. for Professional Med. Conduct, 170 A.D.3d 1342, 1343, 96 N.Y.S.3d 379 [2019] ). The ARB's determination will be upheld so long as there is a rational basis and factual support for it (see Matter of Gutierrez v. New York State Bd. for Professional Med. Conduct, 170 A.D.3d at 1343, 96 N.Y.S.3d 379 ; Matter of St. Hill v. New York State Bd. for Professional Med. Conduct, 166 A.D.3d 1092, 1093, 86 N.Y.S.3d 661 [2018] ).

Petitioner first argues that respondent, through the Office of Professional Medical Conduct, was obliged to offer her the opportunity to be interviewed during the investigatory process, but she is incorrect. A licensee must be offered an investigatory interview in cases where respondent has looked into a licensee's suspected professional misconduct and "referred [the matter] to an investigation committee" for further review ( Public Health Law § 230[10][a][iii] ; see Public Health Law § 230[10][a][i] ). An interview need not be offered in situations like the one here, where an investigation committee was not involved and the charge, which arose from criminal convictions that constituted professional misconduct per se, was directly referred to the Hearing Committee "for an expedited hearing limited to the nature and severity of the penalty to be imposed" ( Matter of Wolkoff v. Chassin, 89 N.Y.2d 250, 252 n., 652 N.Y.S.2d 712, 675 N.E.2d 447 [1996] ; see Education Law § 6530[9][a][i] ; Public Health Law § 230[10][p] ). Further, inasmuch as an interview would do little in the context of a direct referral proceeding beyond affording petitioner an opportunity "to relitigate the circumstances underlying" the criminal convictions, she was not entitled to an interview as a matter of due process ( Matter of Ackerman v. New York State Dept. of Health, 155 A.D.3d 1138, 1141, 64 N.Y.S.3d 370 [2017], lv denied 31 N.Y.3d 905, 2018 WL 2012953 [2018] ; see e.g. Matter of Mitchell, 40 N.Y.2d 153, 157, 386 N.Y.S.2d 95, 351 N.E.2d 743 [1976] ).

Petitioner next asserts that the ARB improperly rejected her attempt to invoke the protections of Correction Law article 23–A, but "Correction Law article 23–A was designed to eliminate bias against ex-offenders in obtaining employment or a license ... and has ‘no bearing on disciplinary proceedings against persons already licensed’ " ( Matter of Baman v. State of New York, 85 A.D.3d 1400, 1401, 925 N.Y.S.2d 710 [2011], quoting Matter of Mosner v. Ambach, 66 A.D.2d 912, 912, 410 N.Y.S.2d 937 [1978] [internal citation omitted]; see Correction Law § 751 ; Matter of Pietranico v. Ambach, 82 A.D.2d 625, 626, 442 N.Y.S.2d 827 [1981], affd 55 N.Y.2d 861, 447 N.Y.S.2d 924, 432 N.E.2d 796 [1982] ). Similarly, petitioner's receipt of a certificate of relief from disabilities arising from her convictions did not "in any way prevent" the ARB from exercising "its discretionary power to" revoke her medical license ( Correction Law § 701[3] ; see Matter of Pietranico v....