Rigle v. Daines

• Decision Date: 04 November 2010
• Parties: In the Matter of David A. RIGLE, Petitioner, v. Richard F. DAINES, as Commissioner of Health, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

910 N.Y.S.2d 299
78 A.D.3d 1249

In the Matter of David A. RIGLE, Petitioner,
v.
Richard F. DAINES, as Commissioner of Health, et al., Respondents.

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

Nov. 4, 2010.

910 N.Y.S.2d 301

DeGraff, Foy & Kunz, L.L.P., Albany (Aaron F. Carbone of counsel), for petitioner.

Andrew M. Cuomo, Attorney General, New York City (Kathryn E. Leone of counsel), for respondents.

Before: PETERS, J.P., ROSE, LAHTINEN, McCARTHY and GARRY, JJ.

LAHTINEN, J.

78 A.D.3d 1250

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.

Petitioner, a forensic pathologist, was licensed to practice medicine in New York in 1990 and, since the mid-1990s, he has limited his practice to providing consultation services as a medical expert. He has had several medical conduct issues through the years, including a voluntary temporary suspension of his medical license in 1991 followed by two years of probation, a consent agreement limiting the scope of his practice in 1998 and a six-month suspension in 2007. In 2008, the Bureau of Professional Medical Conduct (hereinafter BPMC) filed a statement of charges against petitioner alleging cocaine dependency, habitual abuse of alcohol, habitual abuse of the prescription drug hydrocodone, a psychiatric condition impairing his ability to practice medicine, neglect to pay a civil fine of $2,500 that had been directed in an earlier order of a Hearing Committee of respondent State Board for Professional Medical Conduct, and failure to report self-prescribed medication in violation of a prior voluntary agreement with the Office of Professional Medical Conduct.

Following a hearing, the Committee dismissed the charge alleging cocaine dependency, but sustained the remaining charges and, as a penalty, suspended petitioner's license for two years. The suspension was stayed upon the condition that petitioner comply with various terms of probation. The parties sought review by respondent Administrative Review Board for Professional Medical Conduct (hereinafter ARB), which affirmed the Committee's findings regarding professional misconduct.

910 N.Y.S.2d 302

However, the ARB unanimously overturned the Committee's penalty and, instead, revoked petitioner's license to practice medicine. Petitioner then commenced the current proceeding.

We are unpersuaded by petitioner's initial argument that various alleged procedural and evidentiary errors resulted in a hearing that was not fair and violated due process. Considerable leeway regarding the rules of evidence is permitted in administrative proceedings, and the requirements of due process are not as exacting in such proceedings as in criminal cases ( see Matter of Smith v. New York State Dept. of Health, 66 A.D.3d 1144, 1147, 887 N.Y.S.2d 294 [2009]; Matter of Tsirelman v. Daines, 61 A.D.3d 1128, 1130-1131, 876 N.Y.S.2d 237 [2009], lv. denied 13 N.Y.3d 709, 890 N.Y.S.2d 447, 918 N.E.2d 962 [2009] ). "To warrant

78 A.D.3d 1251

annulment, an erroneous evidentiary ruling must 'infect the entire proceeding with unfairness' " ( Matter of Morfesis v. Sobol, 172 A.D.2d 897, 897, 567 N.Y.S.2d 954 [1991], lv. denied 78 N.Y.2d 856, 574 N.Y.S.2d 937, 580 N.E.2d 409 [1991], quoting Matter of Ackerman v. Ambach, 142 A.D.2d 842, 845, 530 N.Y.S.2d 893 [1988], affd. 73 N.Y.2d 323, 540 N.Y.S.2d 6, 537 N.E.2d 181 [1989] ).

Petitioner contends that he did not have sufficient notice to permit him to prepare for the hearing. The charges were served upon him on January 28, 2008, a prehearing conference was conducted on February 20, 2008, and the hearing commenced on February 29, 2008. This notice complied with the statutory requirement ( see Public Health Law § 230[10] former [d] ), and the Administrative Law Judge (hereinafter ALJ) did not abuse his discretion in refusing to adjourn the hearing ( see Matter of Kosich v. New York State Dept. of Health, 49 A.D.3d 980, 982-983, 854 N.Y.S.2d 551 [2008], appeal dismissed 10 N.Y.3d 950, 862 N.Y.S.2d...