Tribeca Med., P.C. v. N.Y. State Dep't of Health

• Decision Date: 07 April 2011
• Parties: In the Matter of TRIBECA MEDICAL, P.C., Petitioner, v. NEW YORK STATE DEPARTMENT OF HEALTH et al., Respondents.
• Court: New York Supreme Court

83 A.D.3d 1135

920 N.Y.S.2d 473

In the Matter of TRIBECA MEDICAL, P.C., Petitioner,

v.NEW YORK STATE DEPARTMENT OF HEALTH et al., Respondents.

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

April 7, 2011.

Popovitch & Popovitch, L.L.C., Point Pleasant, New Jersey (Frederick E. Popovitch of counsel, pro hac vice), for petitioner.

Eric T. Schneiderman, Attorney General, New York City (Raymond J. Foley of counsel), for respondents.

Before: LAHTINEN, J.P., KAVANAGH, McCARTHY and GARRY, JJ.

LAHTINEN, J.P.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Public Health Law § 230–c[5] ) to review a determination of the Administrative Review Board for Professional Medical Conduct which annulled petitioner's certificate of incorporation.

In June 2008, the Bureau of Professional Medical Conduct issued a statement of charges alleging that petitioner, a professional service corporation engaged in the practice of medicine, committed professional misconduct under Education Law § 6530(16) by failing to comply with the provisions of Business Corporation Law § 1503 which prohibit non-physicians from owning or controlling medical service corporations. On July 21, 2008, the notice of hearing and statement of charges were served on petitioner via the Secretary of State, as petitioner's authorized agent for that purpose. Petitioner did not submit an answer, nor did it appear at either the September 3, 2008 prehearing conference or the September 15, 2008 hearing before a Hearing Committee of respondent State Board for Professional Medical Conduct. In an October 3, 2008 decision, the Hearing Committee sustained the charge of misconduct and, as a penalty, directed that petitioner's certificate of incorporation be annulled. Petitioner thereafter sought review before respondent Administrative Review Board for Professional Medical Conduct (hereinafter ARB), arguing that it had been unaware of the charge against it, therefore the Hearing Committee's determination should be nullified and petitioner be permitted to serve an answer. The ARB denied petitioner's request and affirmed, prompting this CPLR article 78 proceeding.

We confirm. Notably, petitioner does not contend that personal jurisdiction was not obtained over it or that the Secretary of State was not properly served ( see generally Associated Imports v. Amiel Publ., 168 A.D.2d 354, 354, 562 N.Y.S.2d 678 [1990],lv. dismissed77 N.Y.2d 873, 568 N.Y.S.2d 915, 571 N.E.2d 85 [1991] ); instead, petitioner maintains that the ARB unreasonably refused to open the default and allow it to serve an answer. While we agree with petitioner's assertion that the ARB possessed the discretionary “authority to remand a case to the [Hearing Committee] for reconsideration or further proceedings,” including relieving petitioner of its default (Public Health Law § 230–c[4][b]; see e.g. Matter of Stratford, 2000 N.Y. Phys. Dec. LEXIS 54, at *6–*7; see also Matter of Lake Placid Club v. Abrams, 6 A.D.2d 469, 473, 179 N.Y.S.2d 487 [1958],affd.6 N.Y.2d 857, 188 N.Y.S.2d 561, 160 N.E.2d 92 [1959] ), we find nothing in the record indicating that petitioner had any meritorious defense to the statement of charges ( seeCPLR 317; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141–142, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986];Maines Paper & Food Serv. v. Farmington Foods, 233 A.D.2d 595, 596, 649 N.Y.S.2d 230 [1996] ) and conclude that the ARB's...