Silberman v. Whelan

Decision Date10 May 1979
Citation416 N.Y.S.2d 30,70 A.D.2d 537
PartiesMatter of Jason SILBERMAN, Petitioner-Appellant, for a Judgment Under Article 78 of the CPLR, etc., v. Robert P. WHELAN, M.D., etc., Respondent-Respondent.
CourtNew York Supreme Court — Appellate Division

R. T. Shulman, Mineola, for petitioner-appellant.

P. E. Dahlman, New York City, for respondent-respondent.

Before FEIN, J. P., and SULLIVAN, LANE, LUPIANO and ROSS, JJ.

Judgment, Supreme Court, New York County, entered October 13, 1978, dismissing the petition in this Article 78 proceeding, in the nature of prohibition, unanimously affirmed, without costs or disbursements.

While Special Term correctly dismissed the petition, it relied improperly on mootness in so doing, as respondent concedes. Nor is the proceeding barred by the statute of limitations, which begins to run on the date of the final order of determination after the hearing, not on the date of notice of the administrative hearing. Petitioner's argument that the new charges are, in substance, the same as those dismissed after the initial hearing, and now masqueraded under a different label, may well have merit. Thus, a defense of Res judicata, which, generally, is applicable to administrative hearings (Evans v. Monaghan, 306 N.Y. 312, 118 N.E.2d 452, Davis, Administrative Law, § 18.03) would lie. An Article 78 proceeding in the nature of prohibition, however, is inappropriate here inasmuch as there has been no showing of lack of administrative jurisdiction or clear excess of power. (See, State v. King, 36 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 881, 324 N.E.2d 351, 353; Matter of Lawrence v. Supreme Court, 24 A.D.2d 849, 264 N.Y.S.2d 501.) At most, petitioner is raising an issue which should properly be a defense in the administrative proceeding. In the event he is unsuccessful, he may, then, of course, challenge the adverse determination in an article 78 proceeding.

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5 cases
  • Newsday, Inc. v. Ross
    • United States
    • New York Supreme Court — Appellate Division
    • March 30, 1981
    ... ... Monaghan, 306 N.Y. 312, 323-324, 118 N.E.2d 452; Bernstein v. Birch Wathen School, 71 A.D.2d 129, 132, 421 N.Y.S.2d 574; Matter of Silberman v. Whalen, 70 A.D.2d 537, 416 N.Y.S.2d 30; Matter of Blanco v. Blum, 67 A.D.2d 947, 948, 413 N.Y.S.2d 215.) Developed to bring finality to ... ...
  • State v. Farragut Nursing Home
    • United States
    • New York Supreme Court
    • October 25, 1982
    ... ... was timely commenced on January 22, 1980 by the service of a summons and motion for summary judgment in lieu of a complaint (see, Matter of Silberman v. Whelan, 70 A.D.2d 537, 416 N.Y.S.2d 30 wherein the court stated "Nor is the proceeding barred by the Statute of Limitations, which begins to run ... ...
  • State v. Mayflower Nursing Home
    • United States
    • New York Supreme Court — Appellate Division
    • November 28, 1988
    ... ... We disagree ...         Here, as in Matter of Silberman v. Whalen, 70 A.D.2d 537, 416 N.Y.S.2d 30, "the Statute of Limitations * * * begins to run on the date of the final order of determination after the ... ...
  • DeSimone v. South African Marine Corp., S.A.
    • United States
    • New York Supreme Court — Appellate Division
    • June 8, 1981
    ... ... (Matter of Evans v. Monaghan, 306 N.Y. 312, 323-324 ... Bernstein v. Birch Wathen School, 71 A.D.2d 129, 132 Matter of Silberman v. Whalen, 70 A.D.2d 537 Matter of Blanco v. Blum, 67 A.D.2d 947, 948 Developed to bring finality to dispute resolution in the courts, these common ... ...
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