IN RE: ANNA A. JABBOUR (2026)

MEMORANDUM AND JUDGMENT

Calendar Date:  May 29, 2026

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Education Law § 6510[5] ) to review a determination of respondent Board of Regents, among other things, granting petitioner's application for a consent order and suspending petitioner's license to practice as a pharmacist.

In August 2021, petitioner – then licensed as a pharmacist by respondent State Education Department – was reported to the Department's Office of Professional Discipline (hereinafter OPD) by her employer, which advised that she had been terminated for the theft of controlled substances.  Following an investigation, OPD charged petitioner with one specification of professional misconduct.  In lieu of a hearing, OPD extended a settlement offer in May 2022, and, after some negotiation, petitioner's attorney communicated petitioner's acceptance of the offer by identical letters dated December 16, 2022 and February 13, 2023.  The matter was subsequently reassigned to a different OPD prosecutor, who drafted a consent order application and mailed it to the attorney.  Petitioner and the attorney executed the application on May 14, 2024 and returned it to OPD. In October 2024, respondent Board of Regents voted to grant the application (see 8 NYCRR 17.5).

On November 6, 2024, petitioner's attorney sent a letter to the OPD prosecutor requesting that the specification of professional misconduct be amended to disorderly conduct in order to “preserve [petitioner's] reputation” and her “ability for re-employment.”  That same day, petitioner emailed OPD, asserting that her attorney had “asked [her] to sign a consent on something he never explained to [her],” that she had “revoked this document immediately according to the lawyer” but that “it was not properly revoked,” and that she had directed the attorney to contact OPD “multiple [times] to revoke this” without any response.  She further asserted that her name had been published online and that “the misconduct that's online is NOT what I was charged for.”  The following day, the OPD Deputy Commissioner responded by letter, advising petitioner that she could request reconsideration of the consent order.

On November 26, 2024, petitioner – through the attorney – applied for reconsideration.  The OPD Director denied petitioner's application, without referral to the Board, concluding that petitioner had failed to demonstrate an error of law, come forward with new and material evidence previously unavailable, or establish a subsequent change in circumstances warranting reconsideration (see 8 NYCRR 3.3[f] ).

Represented by new counsel, petitioner commenced this CPLR article 78 proceeding to annul the consent order.  She alleges that, after executing the consent order application but before its submission to the Board, she “revoked her consent to the contract and notified the State's representatives of that fact through her attorney.”  In support, she submitted an affirmation from the attorney averring that, “long before” the consent order application was granted, petitioner directed him to revoke her consent and that he telephoned and emailed the Director of Prosecutions to advise “that [petitioner] expressly revoked her consent and consequently, the [a]pplication could not even be considered, much less accepted, by the Board.”  Following an unsuccessful motion to dismiss, respondents answered and submitted an affidavit from the Director of Prosecutions averring that neither petitioner nor the attorney had attempted to revoke the consent order before the Board's approval.

Notwithstanding that history, we cannot grant petitioner the relief she seeks.  Petitioner cannot be aggrieved by an order to which she consented, and therefore a proceeding to annul that order does not lie (see Matter of Kirk v State Bd. for Professional Med. Conduct, 58 AD3d 910, 910 [3d Dept 2009];  Matter of Bloom v New York State Dept. of Health, N.Y. State Bd. for Professional Med. Conduct, 301 A.D.2d 881, 882 [3d Dept 2003] ).  To challenge a consent order, the proper procedure is to seek reconsideration and, if denied, to challenge that denial in a CPLR article 78 proceeding in the nature of mandamus to review (see CPLR 7801, 7803[3];  Matter of Anderson v. Ambach, 96 A.D.2d 631, 632 [3d Dept 1983], lv denied 60 N.Y.2d 556 [1983] ).  Despite availing herself of the reconsideration procedure at the administrative level, petitioner has not advanced any argument in this Court challenging the OPD Director's denial of her reconsideration application, thereby abandoning any claim that the denial was an abuse of discretion (see Matter of Allrich v Regents Review Comm. Off. of Legal Servs., 179 AD3d 1156, 1159 [3d Dept 2020];  Matter of Reddy v. Catone, 105 AD3d 1164, 1166 [3d Dept 2013] ).

Attempting to get around those roadblocks, petitioner contends that the propriety of the consent order is before us because she revoked her acceptance of OPD's settlement offer, thereby voiding the consent order and rendering the reconsideration procedure inapplicable from the outset.  The appropriate mechanism to establish that petitioner timely revoked her acceptance of OPD's settlement offer – and thereby demonstrate that the discipline imposed by the consent order was erroneous as a matter of contract law – is the reconsideration procedure (see 8 NYCRR 3.3[f];  see generally Silber v. New York Life Ins. Co., 92 AD3d 436, 440 [1st Dept 2012] ).

Notably, though petitioner's November 6, 2024 email to OPD made the claim that she had revoked, or attempted to revoke, her acceptance of OPD's settlement offer through her attorney, her November 26, 2024 reconsideration application did not.  Instead, petitioner asserted that she had not been given the opportunity to participate in diversion programs and that she was unable to find employment as a pharmacist.  As a result, even if we liberally construed petitioner's argument in this proceeding as an attack on the reconsideration denial, it would be unpreserved for failure to raise it at the administrative level (see Matter of Saleem v. Commissioner of Educ., 133 A.D.2d 953, 954 [3d Dept 1987];  Matter of Sasson v. Commissioner of Educ., 127 A.D.2d 875, 876 [3d Dept 1987] ).

Petitioner has, however, filed a second request for reconsideration during the pendency of this proceeding.  According to the Director of Prosecutions, the OPD Director has not yet responded to that request.  Assuming petitioner has asserted her revocation argument, it is through that reconsideration request – and, if denied, a new CPLR article 78 proceeding – that her claim may be adjudicated (see CPLR 7801, 7803[3];  Matter of Anderson v. Ambach, 96 A.D.2d at 632).

We have considered the parties' remaining contentions and find them unavailing.  In light of our determination, petitioner's request to stay enforcement of the consent order until final determination of the instant petition is denied as academic.

Clark, J.P., Ceresia, McShan and Powers, JJ., concur.

ADJUDGED that the petition is dismissed, without costs.

Aarons, J.