New York State Department of Health, Board for Professional Medical Conduct, Appellant. v. <<

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

Matter of Warren H. WILLIAMS, M.D., Respondent; New York State Department of Health, Board for Professional Medical Conduct, Appellant.

Decided: December 31, 1997

Before PINE, J.P., and LAWTON, WISNER, CALLAHAN and BOEHM, JJ. Dennis C. Vacco, NYS Attorney General by Peter Sullivan, Buffalo, for Respondent-Appellant. Offerman, Cassano, Pigott & Greco by Francis Offerman, Jr., Buffalo, for Petitioner-Respondent.

 Petitioner, a psychiatrist, was the subject of a professional misconduct proceeding commenced by respondent, New York State Department of Health, Board for Professional Medical Conduct, pursuant to Public Health Law § 230.   While that proceeding was pending, petitioner sought an order in Supreme Court pursuant to CPL 710.20 suppressing evidence from use in that proceeding.   Although there was no action or proceeding pending in Supreme Court, the court signed an order to show cause and stayed the professional misconduct proceeding pending determination of the application (see, CPL 710.40), and following oral argument the court granted the application.   That was error.

 It is well settled, particularly in the context of professional misconduct proceedings, that, “absent extraordinary circumstances, courts are constrained not to interject themselves into ongoing administrative proceedings until final resolution of those proceedings before the agency” (Galin v. Chassin, 217 A.D.2d 446, 447, 629 N.Y.S.2d 247;  see, Doe v. St. Clare's Hosp. & Health Ctr., 194 A.D.2d 365, 366, 598 N.Y.S.2d 253, lv. denied 82 N.Y.2d 662, 610 N.Y.S.2d 149, 632 N.E.2d 459).   An error of law in the administrative process is not subject to collateral review, “no matter how egregious that error may be” (Matter of Doe v. Axelrod, 71 N.Y.2d 484, 490, 527 N.Y.S.2d 368, 522 N.E.2d 444).  “[O]ne who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law” (Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821, 385 N.E.2d 560;  see also, Matter of Doe v. Axelrod, supra, at 491, 527 N.Y.S.2d 368, 522 N.E.2d 444 [Simons, concurring] ).   Furthermore, “[a] violation of a constitutional right may have different consequences depending on whether the evidence obtained in violation of that right is threatened to be used in criminal or noncriminal proceedings” (Matter of Stedronsky v. Sobol, 175 A.D.2d 373, 375, 572 N.Y.S.2d 445, lv. denied 78 N.Y.2d 864, 578 N.Y.S.2d 878, 586 N.E.2d 61;  see also, Matter of Mancini v. Codd, 46 N.Y.2d 12, 31, 412 N.Y.S.2d 801, 385 N.E.2d 541).   The court has effectively precluded respondent from determining, in the first instance, the application of the exclusionary rule to its proceeding (see, Matter of Juan C. v. Cortines, 89 N.Y.2d 659, 657 N.Y.S.2d 581, 679 N.E.2d 1061;  Matter of Boyd v. Constantine, 81 N.Y.2d 189, 597 N.Y.S.2d 605, 613 N.E.2d 511).

Additionally, “administrative proceedings [pursuant to Public Health Law § 230] are mandated to proceed expeditiously to protect the public interest” (Galin v. Chassin, supra, at 447, 629 N.Y.S.2d 247).   To allow the court to interfere in the process as it did here encourages needless delay.   The legality of the search and seizure should be litigated within the professional misconduct proceeding (see, Matter of Kim v. Sobol, 180 A.D.2d 976, 580 N.Y.S.2d 581, appeal dismissed 80 N.Y.2d 825, 587 N.Y.S.2d 907, 600 N.E.2d 634, lv. denied 80 N.Y.2d 757, 589 N.Y.S.2d 308, 602 N.E.2d 1124;  see also, Matter of Stedronsky v. Sobol, supra).

We have not considered petitioner's estoppel argument because it was not addressed in petitioner's brief (see, Ciesinski v. Town of Aurora, 202 A.D.2d 984, 609 N.Y.S.2d 745).

Order insofar as appealed from unanimously reversed on the law without costs.

MEMORANDUM: