IN RE: JANET M. IZZO AND JENNIFER M. (2015)

Supreme Court, Appellate Division, Fourth Department.

IN RE: JANET M. IZZO AND JENNIFER M. BEARD, AS COADMINISTRATORS OF THE ESTATE OF LAURA HULING, DECEASED , PETITIONERS–RESPONDENTS, v.
NEW YORK STATE DEPARTMENT OF HEALTH, NIRA R. SHAH, COMMISSIONER, NEW YORK STATE DEPARTMENT OF HEALTH, STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, KENDRICK SEARS, CHAIR, STATE BOARD OF PROFESSIONAL MEDICAL CONDUCT, OFFICE OF PROFESSIONAL MEDICAL CONDUCT AND KEITH SERVIS, EXECUTIVE DIRECTOR OF OFFICE OF PROFESSIONAL MEDICAL CONDUCT, RESPONDENTS–APPELLANTS. v.

CA 14–01035

Decided: December 31, 2015

PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, VALENTINO, AND WHALEN, JJ.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (VICTOR PALADINO OF COUNSEL), FOR RESPONDENTS–APPELLANTS. JANET M. IZZO, SYRACUSE, PETITIONER–RESPONDENT PRO SE AND FOR JENNIFER M. BEARD, PETITIONER–RESPONDENT.

MEMORANDUM AND ORDER

Appeal, by permission of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order and judgment of the Supreme Court, Onondaga County (Anthony J. Paris, J.), entered May 29, 2014 in a proceeding pursuant to CPLR article 78. The order and judgment, among other things, directed respondents to serve detailed affidavits with their answer and to provide certain documents for in camera review.

It is hereby ORDERED that the order and judgment so appealed from is unanimously reversed on the law without costs and the petition is dismissed.

We further agree with respondents that the petition must be dismissed. A patient complaining of professional misconduct has no standing to challenge the determination of a disciplinary body not to pursue disciplinary action (see Matter of Davis v New York State Dept. of Educ., 96 AD3d 1261, 1262), and petitioners therefore have no standing to challenge OPMC's determination not to bring medical misconduct charges pursuant to Education Law § 6510. In any event, we further conclude that the determination of a disciplinary body such as OPMC that no misconduct occurred in a particular case “is a discretionary one for which review in a proceeding in the nature of mandamus is unavailable” (Matter of Frooks v. Adams, 214 A.D.2d 615, 615; see Davis, 96 AD3d at 1262–1263; see also Matter of Wade v. Suffolk County Med. Socy., 88 A.D.2d 602, 602).

Frances E. Cafarell

Clerk of the Court

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