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MATTER GEORGE N. HAYNAL v. BOARD REGENTS UNIVERSITY STATE NEW YORK ET AL. (11/24/69)

SUPREME COURT OF NEW YORK, SPECIAL TERM, ALBANY COUNTY 1969.NY.43575 <http://www.versuslaw.com>; 305 N.Y.S.2d 416; 61 Misc. 2d 268 November 24, 1969 IN THE MATTER OF GEORGE N. HAYNAL, PETITIONER,v.BOARD OF REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK ET AL., RESPONDENTS. IN THE MATTER OF ANDREW ANTYPAS, PETITIONER, V. UNIVERSITY OF THE STATE OF NEW YORK ET AL., RESPONDENTS. IN THE MATTER OF ANDREW J. LAPPAS, PETITIONER, V. UNIVERSITY OF THE STATE OF NEW YORK ET AL., RESPONDENTS. IN THE MATTER OF MARVIN BERGMAN, PETITIONER, V. BOARD OF REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK ET AL., RESPONDENTS. IN THE MATTER OF IRENE M. FONO, PETITIONER, V. JAMES E. ALLEN, JR., AS COMMISSIONER OF EDUCATION OF THE STATE OF NEW YORK, ET AL., RESPONDENTS Hearings held pursuant to order of the Appellate Division, Third Department, which also continued the stay theretofore granted in each case (19 A.D.2d 204; mot. for lv. to app. den. 13 N.Y.2d 597). Paley, Levy, Rogers & Carroll (Abraham D. Levy, Solomon Boneparth and Michael Russakow of counsel), for George N. Haynal, petitioner. De Graff, Foy, Conway & Holt-Harris (Frank J. Lasch of counsel), for Andrew Antypas, petitioner. Andrew J. Lappas, petitioner in person. Koenig, Siskind & Drabkin (Mortimer H. Koenig and Zenaida Drabkin of counsel), for Marvin Bergman, petitioner. La Carrubba & La Carrubba (Nicholas La Carrubba of counsel), for Irene M. Fono, petitioner. Robert D. Stone, John R. Davison and Donald O. Meserve for respondents. R. Waldron Herzberg, J. Author: Herzberg


Hearings held pursuant to order of the Appellate Division, Third Department, which also continued the stay theretofore granted in each case (19 A.D.2d 204; mot. for lv. to app. den. 13 N.Y.2d 597).

R. Waldron Herzberg, J.

Author: Herzberg

 The petitioners in these five article 78 proceedings seek to review the action of the Board of Regents and reverse the orders of the Commissioner of Education made on the 29th day of May, 1962 directing that the licenses of petitioners to practice medicine and their registrations as physicians "be and the same hereby are cancelled" upon the ground they were "issued in error."

The records of the Board of Regents indicate that each of the five petitioners initially failed to receive passing grades of 75 in either one or more of the required subjects on their written examination papers. Furthermore an inspection of these records discloses that the failing grades were subsequently raised to a passing mark of 75 after which, in due course, the Commissioner of Education issued licenses to practice medicine to the petitioners and registered them as physicians.

The evidence establishes that none of the petitioners took part in the raising of the grades or had any knowledge of the unauthorized changes made by a former employee of the State Department of Education. Moreover, it is undisputed that the Commissioner of Education canceled the licenses without prior notice to petitioners and without affording them hearings.

Petitioners argue that the respondents had neither statutory authority nor inherent power to cancel a license for an error committed solely on their part. Moreover, they contend, even assuming an inherent power to correct an error exists, the respondents could not lawfully cancel a license once issued without granting the licensee a hearing. On the other hand the respondents claim that the right of the Board of Regents to correct their own errors or mistakes or those of their subordinates is not only inherent in their authority but does not require prior notice to the licensee and a hearing before action on their part.

The law of this State is clear that the Board of Regents has an inherent power to correct an error or mistake even after a license has been issued. In People ex rel. Finnegan v. McBride (226 N. Y. 252, 258-259) Pound, J. speaking for a unanimous court wrote: "The action of the commission [Civil Service Commission of the City of New York], had with due deliberation, upon such a matter as the establishment of an eligible list, should, for obvious reasons, be regarded as a finality, but the commission's authority thereon does not wholly cease. It certifies names therefrom for appointment. Error may be corrected by setting it aside if it was the result of illegality, irregularity in vital matters, or fraud. The commission may not act arbitrarily. Public officers or agents who exercise judgment and discretion in the performance of their duties may not revoke their determination nor review their own orders once properly and finally made, however much they may have erred in judgment on the facts, even though injustice is the result. A mere change of mind is insufficient. Further action must, where power is not entirely spent, be for cause, with good reasons and proper motives for the correction of improper action. The commission has life and power to vacate a list which has no legal virtue whatsoever" (emphasis added).

However this authority in the Board of Regents to correct errors or mistakes if "the result of illegality, irregularity in vital matters, or fraud" did not empower this administrative body to cancel the licenses of petitioners, who were guilty of no wrongdoing, to practice medicine, except in conformity with due process. The cancellation of the licenses to practice medicine in the instant matters not only precluded petitioners from earning a livelihood, but also destroyed their vested property rights in the continuation of their profession. Due process required that each petitioner should have been fully apprised of the claimed irregularities, if any, and of the evidence to be considered, and should have been given the opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal. (Matter of Hecht v. Monaghan, N.Y. 461, 470). "A fundamental requirement of due process is 'the opportunity to be heard'. * * * It is an opportunity which must be granted at a meaningful time and in a meaningful manner" (Armstrong v. Manzo, 380 U.S. 545, 552).

The failure of the Board of Regents to grant hearings to petitioners necessitates the annulment of the orders made by the Commissioner of Education canceling the petitioners' licenses to practice medicine and their registrations as physicians.

The determination that the orders of the Commissioner canceling the licenses of petitioners to practice medicine must be annulled necessitates a review of the general medical qualifications and background of each petitioner so that a decision can be made whether these proceedings should be remanded to the Board of Regents for further hearings.

(1) Dr. George Haynal

Dr. George Haynal was born in Hungary on December 7, 1913. After preliminary schooling in Budapest, he attended and graduated in 1938 from the Medical School of the Royal Hungarian Peter Pazmany University which included a one- year internship. Thereafter he first served as a surgical resident at the Central Hospital of the Hungarian National Health Insurance Institution. In 1943 he was appointed Associate Director of Surgery at the Trauma Hospital in Budapest. In 1947 Dr. Haynal became a Diplomate of the Hungarian Surgical Board. After his appointment as a Diplomate, Dr. Haynal became a full-time Assistant Professor of Surgery at the Medical School of Budapest. This petitioner testified that from 1940 to 1955 he performed between 2,500 and 3,000 major operations, delivered many lectures and published numerous articles on surgical matters including "The Principles of Traumatic Surgery."

The Communist take-over in Hungary forced Dr. Haynal to flee his native land. He arrived in the United States on April 14, 1957. Shortly thereafter he took a position in a hospital in Boonton, New Jersey, where he remained two months. Then he became associated with the South Nassau Community Hospital as a physician, where he remained for two and a half years.

Dr. Haynal took the December, 1960 New York State licensing examinations. On February 20, 1961 he learned from Dr. Ezell, the Secretary of the Board of Medical Examiners, that he had passed. A ...


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