LLC PATRICK SCOMELLO ALEXA OSANI TAYLOR ROESEL v. NEW YORK STATE EDUCATION DEPARTMENT OFFICE OF PROFESSIONAL DISCIPLINE THE NEW YORK STATE DEPARTMENT OF STATE (2026)

Pending before the Court are petitioners' applications to temporarily stay: (i) enforcement of a cease-and-desist order issued by the New York State Education Department, Office of Professional Discipline ("SED"); (ii) summary license suspensions ordered by the New York State Department of State ("DOS"); and (iii) the administrative hearing scheduled by DOS to consider the revocation of petitioners' appearance enhancement licenses (see NYSCEF Doc Nos. 24-25 ["First OTSC"], 79 ["Second OTSC"]). Respondents cross-move for dismissal of the verified petition (see NYSCEF Doc No. 41; see also NYSCEF Doc No. 1 ["Petition"]).

BACKGROUND

A. The Parties and Governing Statutes

Petitioner Perfect Body Image, LLC ("PBI") operates an appearance-enhancement business in Bay Shore, New York. Petitioner Patrick Scomello is PBI's managing member (see Petition, ¶¶ 1-2), and petitioners Alexa Osani and Taylor Roesel are licensed estheticians associated with the business. According to the Petition, PBI has operated since 2007, treated hundreds of thousands of clients without incident, and has offered a broad array of cosmetic services, including procedures using lasers, radiofrequency, pulsed light, ultrasound and other energy-based devices (see id., ¶¶ 2-6).

Through its Office of Professional Discipline, respondent SED licenses and regulates the professions, including the medical profession. Under Education Law § 6521, "[t]he practice of the profession of medicine is defined as diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition." An unlicensed person "who practices or offers to practice or holds [oneself] out as being able to practice in any profession where a license is [required]" is subject to criminal penalties (Education Law § 6512 [1]).

"Whenever [SED] has reasonable cause to believe that any person has violated any provision of [Education Law § 6512], [it] may issue and serve upon such person a notice to cease and desist from such violation" (Education Law § 6516 [1]). A recipient may "contest the order by requesting a hearing within thirty days" (id. [2], [4]), and, at that time, may also "request a stay" (id. [2]).

Where a hearing is requested and held, the hearing officer shall issue a written report with findings of fact, determinations on the charged violations, and a determination whether to accept, reject or modify the cease-and-desist order (see id. [6]). "The decision of the hearing officer shall be final, except that it may be appealed to a regents review committee within twenty days of the receipt of the hearing officer's report" (id. [7]). A report prepared by the regents review committee is transmitted to the Board of Regents, which "shall decide whether the respondent has violated each charge in the cease and desist order" and "what penalties, if any, to impose" (id.). "The decisions of the board of regents . . . may be reviewed in a proceeding pursuant to [CPLR article 78]" (id.).

Respondent DOS is charged with the licensure of "[a]ppearance enhancement business[es]" (General Business Law ["GBL"] § 400 [8]), which provide "services to enhance the appearance of the [specified areas of the body] . . . , whether performed by manual, mechanical, chemical or electrical means and instruments but shall not include the practice of electrology" (id. [6]). An appearance enhancement license does not, however, constitute authorization "to diagnose and treat diseases, including diseases of the skin" (19 NYCRR 160.27 [c]).

Under State Administrative Procedure Act ("SAPA") § 401 (3), an agency may summarily suspend a license pending revocation proceedings if the agency "finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to

that effect in its order." "The action of the secretary [of state] in suspending . . . a license, or issuing an order directing the cessation of unlicensed activity . . . may be appealed by a proceeding brought under and pursuant to [CPLR article 78]" (GBL § 413).

B. SED's Position Statement and Cease-and-Desist Order

On March 7, 2025, the New York State Board for Medicine ("Board") published a document entitled "Use of Energy Devices Including Lasers as the Practice of Medicine" (NYSCEF Doc No. 2 ["Position Statement"]). The Board "concluded that the use of any energy devices, including lasers, which affect the basement membrane or deeper tissues (e.g., dermis, fat) to treat any 'physical condition' constitutes the practice of medicine," except for "laser hair removal," which was "[s]pecifically excluded" (id. at 1). SED adopted the Board's determination "as to the treatment of all physical conditions" other than "laser hair removal" (id.). Thus, treatments affecting the deeper tissue membranes "must be conducted by or under the order of a licensed physician, physician assistant, or nurse practitioner" (id.).

The Position Statement includes a multi-tiered classification table that determines scope of practice by reference to the type of device being used and the level of skin affected by the device. Certain lower-risk surface and epidermal treatments are classified as outside the practice of medicine, but devices affecting the upper dermis or deeper tissue — including nonablative skin lasers, Thermage, carbon-dioxide lasers and deep radiofrequency devices — are classified as medical treatment requiring administration or supervision by licensed medical professionals.

Energy Device Classification Table

A note appended to the table states that classifications were "designated by the New York Board for Medicine according to the depth of treatments and risk of injury" (Position Statement at 3).

On or about November 22, 2025, SED issued a cease-and-desist order to PBI (see NYSCEF Doc No. 12 ["C&D Order"]), pursuant to Education Law § 6516. The C&D Order recites that PBI holds itself out as being able to practice the profession of medicine through a website offering several dozen treatments using lasers and other energy devices, including Thermage, CoolPeel, Fraxel, radiofrequency and ultrasound technologies (see id. at 1-3). The C&D Order further recites that: PBI's personnel are not licensed to practice medicine or nursing; PBI lacked authorization to render professional services; and licensed estheticians had performed Thermage and CoolPeel procedures on a client (prior to issuance of the Position Statement) (see id. at 1-4).

PBI was ordered to cease and desist from such activities and advised of its rights to: (i) contest the C&D Order by requesting a hearing; and (ii) request a stay of the C&D Order "at the time a hearing is requested" (id. at 4).

C. Stay Request

PBI requested an administrative hearing and applied for a stay of the C&D Order on December 30, 2025 (see NYSCEF Doc No. 74 at 3-4). Hearing officer Annette Belka ("Hearing Officer") denied a stay on January 2, 2026, finding that PBI had failed to refute SED's allegations that (i) PBI is offering services within the scope of the medical and nursing professions, and (ii) PBI's violations give rise to an imminent danger to public health (see NYSCEF Doc No. 46 at 1-2). The Hearing Officer reasoned that the potential harm to the public outweighed PBI's reasons for a stay, which were largely based on convenience (see id. at 2). Nonetheless, the Hearing Officer noted that the C&D Order does not prohibit PBI and its employees from continuing to provide appearance enhancement services outside the scope of medicine or nursing (see id. at 2-3).

D. DOS's Enforcement Actions

DOS conducted its own investigation into PBI, and an investigator cited Scomello on January 30, 2026 for violating 19 NYCRR 160.27, which prohibits estheticians from engaging in the unlicensed practice of medicine or offering to provide medical services (see NYSCEF Doc No. 5). In February 2026, a DOS investigator spoke with eight previous clients of PBI, who reported burns, discoloration, open wounds, prolonged burning sensations and significant pain following energy-device procedures conducted between 2016 and 2025 (see NYSCEF Doc No. 14, Statement of Charges, ¶ 6).¹ DOS investigators then reviewed PBI's website again on April 1, 2026, and found that PBI continued to offer services required to be performed by, or under the supervision of, licensed professionals (see id., ¶ 9).

"By engaging in the above-described conduct and committing the aforesaid violations, [PBI, Scomello, Osani and Roesel] have demonstrated incompetency and untrustworthiness in violation of NYGBL § 410(1)(c)" and "have violated . . . Article 27 of the GBL and the regulations adopted thereunder in violation of NYGBL§ 410(1)(e)" (id. at 7).

DOS also exercised its discretion to summarily suspend petitioners' licenses pending the hearing (see NYSCEF Doc No. 14, Secretary's Order of Summary Action ["Suspension Order"]). That hearing initially was noticed for May 1, 2026 (see id., Notice of Hearing).

E. This Proceeding

Petitioners commenced this proceeding in Supreme Court, Suffolk County on April 22, 2026 (see NYSCEF Doc No. 1). Liberally construed, the Petition challenges SED's C&D Order and DOS's summary suspensions, contending that both agencies' actions are based on the Position Statement, which is said to constitute "improper rulemaking" that "is ultra vires, . . . arbitrary, capricious, and affected by error of law under [CPLR article 78]" (Petition, ¶ 15). Petitioners seek an order restraining SED and DOS from enforcing or giving effect to the C&D Order and Suspension Order, respectively, during the pendency of SED's administrative process (see First OTSC, ¶¶ 1-2).

After being served with the First OTSC, respondents demanded that venue be changed to Albany County (see NYSCEF Doc Nos. 31-33), and cross-moved to transfer the case and dismiss the challenge to the C&D Order as unripe (see NYSCEF Doc Nos. 41-42).

Oral argument was held on May 6, 2026 (see NYSCEF Doc No. 73), and Supreme Court, Suffolk County (Hackeling, J.) issued two written orders. The first, dated May 27, 2026, temporarily stayed enforcement of the C&D Order and DOS suspensions pending the determinations of the respective hearing officers (see NYSCEF Doc No. 58). The second order, dated June 5, 2026, transferred this matter to Albany County and continued the temporary restraints (see NYSCEF Doc No. 62).

F. The Administrative Proceedings and Second OTSC

The SED hearing began on June 5, 2026 (see NYSCEF Doc No. 74).

On June 26, 2026, petitioners applied to this Court for the Second OTSC, seeking to stay DOS's administrative hearing, which had been adjourned to July 1, 2026 (see NYSCEF Doc Nos. 70-76). The Court signed the Second OTSC and granted a temporary stay "primarily to give effect to the [prior orders], which 'temporarily enjoined and restrained [respondents] from . . . giving effect to the [C&D Order]" (Second OTSC, Memorandum).

By letter dated July 31, 2026, respondents' counsel advised the Court that the Hearing Officer had issued a report on July 25, 2026 upholding the C&D Order (see NYSCEF Doc No. 88 ["Report"]). Petitioners timely appealed, and the errors they identify, including their claim that SED is enforcing an unpromulgated rule, are pending before a review committee (see NYSCEF Doc No. 90, ¶¶ 4-7). "In the interim, as a consequence of the stay imposed . . . in [this] Article 78 proceeding, SED will not enforce or give effect to the [C&D] Order until the appeal process is exhausted, unless the Court directs otherwise through a decision on the preliminary injunction or other writing" (NYSCEF Doc No. 87).

DISCUSSION

A. Cross Motion to Dismiss

1. Legal Principles

"To challenge an administrative determination, the agency action must be 'final and binding upon the petitioner' " (Matter of Ranco Sand & Stone Corp. v Vecchio, 27 NY3d 92, 98 [2016], quoting Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, 194 [2007], quoting CPLR 217 [1]; see CPLR 7801 [1]). "The finality requirement draw[s] from case law on ripeness for judicial review," and the two doctrines are "closely related" (Ranco, 27 NY3d at 98 [internal quotation marks and citation omitted]; compare Weingarten v Town of Lewisboro, 77 NY2d 926, 928 [1991] ["For a challenge to administrative action to be ripe, the administrative action sought to be reviewed must be final, and the anticipated harm caused by the action must be direct and immediate" (citations omitted)], with Ranco, 27 NY3d at 98 ["for an administrative determination to be final, and thus justiciable, it must be ripe for judicial review"]).

"A determination is final when 'the decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury . . . [that] may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party' " (Matter of Alterra Healthcare Corp. v Novello, 306 AD2d 787, 788 [3d Dept 2003], quoting Matter of Essex County v Zagata, 91 NY2d 447, 453 [1998]).

Similarly, an administrative determination is ripe for judicial review when: (1) the agency has "arrived at a definitive position on the issue that inflicts an actual, concrete injury"; and (2) "the apparent harm inflicted by the [agency] action may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party" (Ranco, 27 NY3d at 98-99 [internal quotation marks and citation omitted]).

2. SED

Applying the foregoing principles, it is apparent that the C&D Order lacks finality and is not ripe for judicial review. Under Education Law § 6516 (7), the Hearing Officer's decision "is final except that it may be appealed to a regents review committee within twenty days of the receipt of the hearing officer's report." PBI represents without contradiction that the matter is now pending before a regents review committee (see NYSCEF Doc No. 90, ¶¶ 4-7). The report of that committee will be transmitted to the Board of Regents, which "shall decide whether [PBI] has violated each charge in the cease and desist order" and "what penalties, if any, to impose" (Education Law § 6516 [7]). "The decisions of the board of regents . . . may be reviewed in a proceeding pursuant to [CPLR article 78]" (id.).

Thus, the injuries complained of by petitioners may be prevented or significantly ameliorated by the ongoing administrative review process. As such, neither the C&D Order nor the Hearing Officer's Report is ripe for judicial review.

In seeking to avoid dismissal, petitioners argue that this matter is not a proceeding under CPLR article 78 seeking review of the (unripe) C&D Order or an action for a declaratory judgment concerning the validity of the C&D Order; rather, petitioners contend that this is solely a proceeding for an injunction under CPLR article 63 (see Petition, Wherefore Clause; NYSCEF Doc No. 83 at 1-3; NYSCEF Doc No. 73 at 6-7):

Petitioners seek prospective equitable relief pursuant to CPLR §§ 6301 and 6312 to preserve the status quo while the legality of the March 7, 2025, [Position Statement] is finally determined. Courts have recognized that where litigants seek declaratory or injunctive relief to restrain ongoing governmental conduct, particularly where constitutional, statutory, or equitable claims are asserted, such claims are not invariably confined to the procedural framework of Article 78. This case presents precisely such circumstances. Petitioners seek only temporary equitable relief preserving the status quo until the threshold legal question common to both pending administrative proceedings is resolved — namely, whether the March 7, 2025, Position Statement constitutes a valid interpretive statement or an invalid unpromulgated rule adopted in violation of SAPA [§§] 201-203 (NYSCEF Doc No. 83, ¶¶ 5-6 [internal citations omitted]).

As respondents observe, however, CPLR article 63 does not supply an independent basis for injunctive relief. A preliminary injunction requires a cognizable underlying claim for judicial determination: the movant "shall show, by affidavit and such other evidence as may be submitted, that there is a cause of action" (CPLR 6312 [a]). As the Court of Appeals has explained, Article 63, "the basic statutory vehicle for preserving the status quo during the pendency of civil litigation[,] . . . authorizes the issuance of a preliminary injunction only within an 'action,' i.e., a judicial suit brought to obtain an adjudication of the merits of, and a substantive remedy for, a particular dispute" (Uniformed Firefighters Assn. of Greater NY v City of New York, 79 NY2d 236, 239 [1992]).

Nor may petitioners avail themselves of Education Law § 6516 (7) at this stage. That statute provides that "decisions of the board of regents . . . may be reviewed in a proceeding pursuant to [CPLR article 78]" and contemplates that such decisions may be "stayed or enjoined" only pursuant to CPLR article 63. However, an injunction under CPLR article 63 is available only within an action or proceeding brought to obtain an adjudication of the merits of a substantive dispute that is ripe for judicial review.

Finally, while the Court recognizes that the C&D Order does inflict actual harm on PBI, PBI did not pursue a CPLR article 78 challenge to the Hearing Officer's denial of a stay on January 2, 2026.

Based on the foregoing, the branch of respondents' cross motion seeking dismissal as against SED under CPLR 3211 (a) (2) is granted.

3. DOS

Respondents argue that "[t]he same principles that apply to Petitioners' challenge to the [C&D] Order likewise prohibit judicial review of DOS's ongoing administrative actions" (NYSCEF Doc No. 42 at 13). However, respondents' own papers cite authority calling that position into doubt (see id., citing Cloister East, Inc. v New York State Liquor Auth., 483 F Supp 3d 221, 240 [SD NY 2020]). And GBL § 413 expressly provides that "[t]he action of the secretary [of state] in suspending . . . a license . . . may be appealed by a proceeding brought under and pursuant to [CPLR article 78]." That DOS has not finally adjudicated the underlying charges does not deprive the Suspension Order of finality for purposes of judicial review (see Matter of Riverkeeper, Inc. v Crotty, 28 AD3d 957, 960 [3d Dept 2006]).

Respondents further argue that DOS's suspension order is rationally based. However, CPLR article 78 contemplates that a challenge to an administrative action ordinarily is determined following service of "[a]n answer and supporting affidavits, if any" (CPLR 7804 [c]; see id. [e-f]), and respondents offer no persuasive basis for departing from this mode of practice. Thus, the merits of the Petition are not yet before the Court.

Accordingly, the branch of the cross motion seeking dismissal of the Petition as to DOS is denied.

B. Stay

Under CPLR 7805, a court may "stay further proceedings, or the enforcement of any determination under review." "Supreme Court has broad authority to provide relief from an administrative determination in a CPLR article 78 proceeding . . . during the pendency of the proceeding" (Matter of Bldg 44 Devs. LLC v State of New York, ___ AD3d ___, ___, 2026 NY Slip Op 02898, *5 [3d Dept 2026]). An application for such relief is guided by the traditional equitable factors governing preliminary injunctions: irreparable harm, likelihood of success and a balance of the equities favoring the movant (see Matter of Riccelli Enters., Inc. v State of NY Workers' Compensation Bd., 117 AD3d 1438, 1439 [4th Dept 2014]; see also Darwish Auto Group, LLC v TD Bank, N.A., 224 AD3d 1115, 1116-1117 [3d Dept 2024]).²

1. Stay of Suspension Order

Irreparable Harm. The Court begins with the issue of irreparable harm. Of the equitable factors, "a showing of probable irreparable harm is the single most important prerequisite" (Reuters Ltd. v United Press Intl., Inc., 903 F2d 904, 907 [2d Cir 1990] [internal quotation marks and citations omitted]). Irreparable harm means an injury for which a monetary award alone cannot be adequate compensation (see Town of Liberty Volunteer Ambulance Corp. v Catskill Regional Med. Ctr., 30 AD3d 739, 740 [3d Dept 2006]).

The Court is satisfied that petitioners have demonstrated that enforcement of the Suspension Order during the pendency of administrative proceedings is likely to inflict imminent and irreparable harm. The Suspension Order effectively shutters PBI, a business that has been providing esthetic enhancement treatments for almost two decades (see Petition, ¶ 2). More importantly, the Suspension Order also bars the individual petitioners from engaging in their licensed occupations, thus jeopardizing their livelihoods (see Suspension Order; see also Petition, ¶¶ 22-24).

Likelihood of Success. The Court begins with the recognition that DOS's enforcement actions and SED's administrative proceeding are distinct matters that arise under separate grants of statutory authority. Nonetheless, the unauthorized-practice charges being prosecuted by DOS necessarily implicate the C&D Order and the Position Statement's definition of petitioners' services as the practice of medicine (see NYSCEF Doc No. 42 at 14-16; see also NYSCEF Doc No. 14, Statement of Charges, ¶ 2 n 2 [relying on the Position Statement]). Thus, while DOS has conducted its own investigation and relies upon additional evidence concerning the risks associated with petitioners' treatments and other conduct, it is apparent that the Suspension Order and revocation charges are predicated on the Position Statement.

For purposes of interim relief, the Court is satisfied that petitioners have shown a fair likelihood of success in challenging the validity of that predicate.

"A 'rule' for purposes of notice and filing requirements includes 'the whole or part of each agency statement, regulation or code of general applicability that implements or applies law' " (Matter of North Shore Hematology-Oncology Assoc., P.C. v New York State Dept. of Health, 233 AD3d 97, 100 [3d Dept 2024], quoting SAPA § 102 [2] [a] [i]). "The primary difference between a rule or regulation and an interpretive statement or guideline is that the former set standards that substantially alter or, in fact, can determine the result of future agency adjudications while the latter simply provide additional detail and clarification as to how such standards are met by the public and upheld by the agency" (Matter of Plainview-Old Bethpage Congress of Teachers v New York State Health Ins. Plan, 140 AD3d 1329, 1331 [3d Dept 2016] [internal quotation marks, citations and alterations omitted], lv denied 29 NY3d 910 [2017]; see SAPA § 102 [2] [b] [iv]).

Although mindful of the deference owed to SED's technical expertise, petitioners have raised legitimate questions as to whether the Position Statement amounts to an unpromulgated rule. Through its rigid classification system based on device type and treatment depth, the Position Statement gives the appearance of "a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers" (Matter of Plainview-Old Bethpage, 140 AD3d at 1331 [internal quotation marks and citation omitted]; see also NYSCEF Doc No. 18, ¶ 7).

As to the governing statute administered by SED, the State Legislature has defined the practice of medicine in terms of the diagnosis and treatment of "human disease, pain, injury, deformity or physical condition" (Education Law § 6521). The latter term, "physical condition," is sufficiently broad to encompass the trimming of fingernails by a manicurist or the removal of facial hair by a barber (see People v Lehrman, 251 App Div 451, 452-454 [1st Dept 1937], affd 276 NY 479 [1937]). Nonetheless, the courts and DOS have long recognized that "[Education Law § 6521] was never intended to cover this type of beauty culture" (id. at 453; see NYSCEF Doc No. 17, Matter of Kaufman, mod 36 DOS APP 12 ["On this record, there is insufficient evidence upon which (DOS) can rely to determine whether the use of laser or laser-like devices by appearance enhancement licensees to perform non-invasive cosmetic procedures constitutes the unauthorized practice of medicine."]; see also Lerhman, 251 App Div at 452 [practice of medicine does not encompass "electrolysis," an "electro-chemical process" involving the insertion of "a needle charged with . . . electricity into the follicle of the hair which to be removed"]).

Thus, Education Law § 6521's broad definition of medical practice must be considered alongside the Legislature's explicit recognition of esthetic services performed "by manual, mechanical, chemical or electrical means and instruments" (GBL§ 400 [6]). Moreover, while treatment depth, device capability and risk of injury may inform of whether particular conduct constitutes medical treatment under Education Law § 6521, the Position Statement appears to treat these factors as dispositive without an articulation of their connection to the diagnosis and treatment of "human disease, pain, injury, deformity or physical condition" (Education Law § 6521; see Matter of North Shore Hematology-Oncology Assoc., 233 AD3d at 101-103).

Balancing of the Equities. The Court finds that the equities tip in favor of a stay. The Suspension Order not only prohibits petitioners from performing procedures deemed the practice of medicine under the Position Statement, but it also prevents the individual petitioners from pursuing their licensed occupations by providing routine services indisputably within the scope of their licenses (see also NYSCEF Doc No. 62).

And given the dismissal of the claims against SED and vacatur of the temporary restraints prohibiting enforcement of the Position Statement, the C&D Order prohibits petitioners from performing disputed procedures. Thus, a stay of the Suspension Order protects petitioners against the broader consequences of the challenged licensure action while protecting the public from conduct that respondents believe to be dangerous.

The Court therefore finds that the Suspension Order should be stayed pending the Court's determination of the Petition as against DOS, so long as petitioners comply with the C&D Order.³

2. DOS Revocation Hearing

For largely the same reasons, the Court finds that the DOS revocation hearing should be stayed pending completion of SED's administrative process. The revocation proceeding is predicated on SED's Position Statement, and petitioners have shown a fair likelihood of success in challenging that predicate. In the Court's view, petitioners should have the opportunity to have their challenges to the Position Statement fully adjudicated by the Regents before facing license revocation proceedings before a different agency that lacks authority to entertain their threshold challenges to the regulatory predicate.⁴

The Court further finds that DOS's time to answer the Petition should be held in abeyance pending completion of the SED administrative process, and this matter should be stayed under CPLR 2201 during such period.

3. Undertaking

A party obtaining a preliminary injunction must "give an undertaking in an amount to be fixed by the court, that the [movant], if it is finally determined that [it] was not entitled to an injunction, will pay to the [enjoined party] all damages and costs which may be sustained by reason of the injunction" (CPLR 6312 [b]).

Respondents identify no quantifiable monetary loss likely to result from temporary continuation of lawful licensed services, and the asserted public-safety interests cannot meaningfully be secured by a bond. Accordingly, the Court grants petitioners' request for a nominal undertaking of $500.

CONCLUSION

Based on the foregoing,⁵ it is

ORDERED that the Petition is dismissed as against SED; and it is further

ORDERED that any temporary restraints imposed upon SED and its enforcement of the C&D Order and/or Position Statement are lifted; and it is further

ORDERED that respondents' cross motion is granted to the extent indicated in the preceding two paragraphs and is otherwise denied; and it is further

ORDERED that enforcement of the DOS Suspension Order is stayed pursuant to CPLR 7805 pending determination of the Petition and further order of Court; and it is further

ORDERED that the DOS administrative hearing to revoke petitioners' appearance enhancement licenses is stayed under CPLR 7805 for a period ending ten (10) days after a final determination is rendered by the Board of Regents on PBI's challenge to the C&D Order and served upon PBI; and it is further

ORDERED that petitioners shall secure the foregoing stays by posting an undertaking of $500 within ten (10) days from the date of this disposition; and it is further

ORDERED that petitioners' Orders to Show Cause are granted to the extent indicated in the preceding three paragraphs and are otherwise denied; and it is further

ORDERED that the remainder of this proceeding shall be stayed under CPLR 2201 for a period ending ten (10) days after a final determination is rendered by the Board of Regents on PBI's challenge to the C&D Order and served upon PBI; and it is further

ORDERED that within twenty (20) days of the termination of the stay of this proceeding, DOS shall answer the Petition in accordance with CPLR 7804 (e); and finally it is

ORDERED that petitioners may serve a reply within one week of the filing of DOS's answer, and the matter will be deemed re-noticed for hearing on the following business day.

This constitutes the Decision & Order of the Court, the original of which is being uploaded to NYSCEF for entry by the Albany County Clerk. Upon such entry, counsel for petitioners shall promptly serve notice of entry on all parties entitled to such notice.

Dated: October 8, 2026

Albany, New York

RICHARD M. PLATKIN

A.J.S.C.

Papers Considered:

NYSCEF Doc Nos. 1-21, 24-29, 41-46, 48-53, 70-75, 79-83, 89-96.

FOOTNOTES

1.   These incidents all occurred prior to issuance of the Position Statement.

2.   Contrary to respondents' assertion (see NYSCEF Doc No. 89 at 3), a stay application under CPLR 7805 is not subject to the heightened standards applicable to mandatory injunctions.

3.   For the avoidance of doubt, the Court is not "direct[ing]" SED "to enforce or give effect to" the C&D Order during the pendency of the administrative review process (NYSCEF Doc No. 87). Vacatur of the temporary restraining order simply allows responsible SED officials to exercise their broad discretion regarding interim enforcement.

4.   The State Legislature has assigned supervision and administration of the medical and nursing professions to the Board of Regents and SED, and DOS has no authority to sit in review of the scope-of-practice determinations made by those agencies (see NYSCEF Doc No. 89 at 6 ["DOS does not purport to define the practice of medicine"]).

5.   The Court has considered the parties' remaining arguments but finds them unavailing or unnecessary to reach given the dispositions ordered herein. Any requests for relief not specifically granted herein are denied.

Richard M. Platkin, J.