In the Matter of CARROLL K. DAVIS, Respondent,
BOARD OF REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK, Appellant.
APPEAL from an order of the Supreme Court at Special Term (HAMM, J.), entered November 13, 1953, in Albany County, which granted a motion by petitioner for an order, pursuant to article 78 of the Civil Practice Act, (1) annulling a determination and order of appellant suspending petitioner's medical license for one year, and (2) requiring appellant to return the medical license to petitioner.
Nathaniel L. Goldstein, Attorney-General (Henry S. Manley and Wendell P. Brown of counsel), for appellant.
Isidore Levine for respondent.
This is an appeal by the Board of Regents from an order of the Special Term annulling the board's determination suspending the license of the petitioner-respondent to practice medicine for one year. The order of annulment was granted upon the ground that the board's decision had been improperly influenced by matters outside the record brought to its attention by its Committee on Discipline.
We have come to the conclusion that the order of the Special Term must be reversed and the determination of the Board of Regents confirmed.
First of all, the Special Term should have transferred the case to the Appellate Division for review in the first instance, pursuant to the terms of subdivision 5 of section 6515 of the Education Law. That subdivision provides that a proceeding under article 78 of the Civil Practice Act for the purpose of reviewing a determination revoking or suspending the license of a licensed practitioner should be made 'returnable before the appellate division of the third judicial department'.
The fact that the petitioner in this case raised only questions of law under subdivisions 4 and 5 of section 1296 of the Civil Practice Act did not affect the duty of the Special Term to transfer the case to the Appellate Division. The specific provision of section 6515 of the Education Law is controlling as against the general provisions of section 1296 of the Civil Practice Act.
As the Special Term pointed out, in dealing with the question of the duty to transfer the case, the petitioner did not raise any question as to the sufficiency of the evidence to warrant the finding by the board that he was guilty of the misconduct charged. The petitioner raised only two procedural points, one that the notice of hearing did not specifically call attention to the fact that the petitioner had the right to have subpoenas issued by the Committee on Grievances on his behalf in accordance with subdivision 4 of section 6515 of the Education Law, and the other that the Regents' Committee on Discipline had improperly mentioned evidence of subsequent misconduct on the part of the petitioner in its supplemental report to the Board of Regents.
The first point was correctly brushed aside by the Special Term as inconsequential. The notice of hearing did not mention
the right to subpena witnesses but it specifically stated that the petitioner had the right to produce witnesses and to cross-examine witnesses. While the petitioner's counsel insisted on being recorded merely as a friend, he was present throughout the hearing and he was unquestionably aware of the right to subpena witnesses. There is nothing to indicate that any evidence that could have been produced on behalf of the petitioner was ...