State of New York Supreme Court, Appellate Division Third Judicial Department
January 19, 2012
IN THE MATTER OF GANGARAM RAGI, APPELLANT,
KEITH SERVIS, AS DIRECTOR OF THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT, ET AL., RESPONDENTS.
Appeal from a judgment of the Supreme Court (Zwack, J.), entered September 24, 2010 in Rensselaer County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.
The opinion of the court was delivered by: Rose, J.
MEMORANDUM AND ORDER
Calendar Date: November 14, 2011
Before: Mercure, Acting P.J., Rose, Lahtinen, Kavanagh and McCarthy, JJ.
Petitioner, a physician licensed to practice medicine in New York and New Jersey, entered into a consent order with respondent Board of Professional Medical Conduct in 2006 whereby he was censured, reprimanded and prevented from engaging in the practice of medicine with female patients in New York. Later, when additional allegations of misconduct arose against him in New Jersey, petitioner requested a modification of the New York consent order. The Board adopted the requested modification and, as a result, petitioner agreed to a modified consent order preventing him from ever practicing medicine in New York. In July 2009, petitioner sought to rescind the modified consent order. In response, on July 29, 2009, he was informed in writing by e-mail from respondents' counsel that respondent Keith Servis, the Director of the Office of Professional Medical Conduct, had fully reviewed his file and denied his request. Although petitioner continued to communicate with respondents requesting reconsideration, each such request was denied in turn. Petitioner did not commence this CPLR article 78 proceeding seeking to rescind the modified consent order until June 10, 2010. Supreme Court granted respondents' motion to dismiss the petition as time-barred, and petitioner appeals.
We affirm. The four-month statute of limitations period to challenge the administrative determination here began to accrue on July 29, 2009, when petitioner was first informed that his request to rescind the modified consent order was denied (see CPLR 217 ; Matter of Adams v Carrion, 85 AD3d 1517, 1518 , lv denied ___ NY3d ___ [Nov. 22, 2011]). The rejection of petitioner's request on that date reflected a definitive position, it was final and binding, and no further administrative steps were available to petitioner (see Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30, 34 ; Matter of Essex County v Zagata, 91 NY2d 447, 453 ). As this proceeding was not commenced within four months of the denial of petitioner's request, Supreme Court properly granted the motion to dismiss (see Belmonte v Saratoga Youth Hockey, Inc., 18 AD3d 1065, 1066 ; Matter of Saraf v Vacanti, 223 AD2d 836, 837-838 ). Petitioner's remaining arguments are unavailing.
Mercure, Acting P.J., Lahtinen, Kavanagh and McCarthy, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
Robert D. Mayberger Clerk of the Court
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