Wildman v. Axelrod — 106 A.D.2d 875

Majority

p. 875

In the Matter of Barbara Wildman, Respondent, v David Axelrod, as Commissioner of Health of the State of New York, et al., Appellants.

Judgment unanimously reversed, without costs, and petition dismissed. Memorandum: In this CPLR article 78 proceeding petitioner, formerly a nurse at St. Camillus Nursing Home, seeks to enjoin respondents from conducting further hearings on charges that she was guilty of patient abuse. Special Term has granted this relief holding that respondents failed to afford petitioner an opportunity for a hearing “within [a] reasonable time” (State Administrative Procedure Act, § 301, subd 1).

Special Term’s determination effectively depriving the Commissioner of jurisdiction to proceed is improper; even if there had been a showing of substantial prejudice due to delay in scheduling the hearings, the Commissioner would not have been ousted of jurisdiction. “In such circumstance, there would have been ‘at most an “erroneous exercise of authority” since such delay would not divest the [commissioner] of jurisdiction’ ” (Matter of Geary v Commissioner of Motor Vehicles, 59 NY2d 950 ,

p. 876

952, quoting Matter of Sarkisian Bros, v State Div. of Human Rights, 48 NY2d 816 , 818; see Matter of Axelrod, 103 AD2d 1007 ). Petitioner must seek relief first in administrative review and following exhaustion of that remedy in judicial review. (Appeal from judgment of Supreme Court, Onondaga County, Aloi, J. — writ of prohibition.) Present — Hancock, Jr., J. P., Callahan, Doerr, Green and Moule, JJ. [ 124 Misc 2d 75 .]

Cases cited

Geary v. Commissioner of Motor Vehicles 59 NY2d 950 N.Y. 1983-06-30 p. 875
Sarkisian Bros. v. State Division of Human Rights 48 NY2d 816 N.Y. 1979-11-20 at 818 p. 876
Wildman v. Axelrod 124 Misc 2d 75 N.Y. Sup. Ct. 1984-04-10 p. 876