Epstein v. Board of Regents of University of New York

Appellate Division of the Supreme Court of New York

Epstein v. Board of Regents of University of New York

267 A.D. 27, 44 N.Y.S.2d 921, 1943 N.Y. App. Div. LEXIS 5960

Appellate Division of the Supreme Court of the State of New York·Decided November 10, 1943·Published·Cited by 7 cases

Opinions

Bliss, J.

This is another case in which a doctor’s license to practice medicine has been revoked solely upon the testimony of paid departmental investigators. The effect of such evidence has been discussed in Matter of Weinstein v. Board of Regents (267 App. Div. 4), decided herewith. Here each investigator with obvious falsity, denied that she sought to trap petitioner, although each admitted that she gave him a false name and falsely stated to him that she was pregnant. Neither investigator was actually pregnant and one had passed the menopause. An abortion was never mentioned. The evidence is quite unsubstantial and there is a total lack of supporting facts. It would sustain neither a criminal conviction nor a verdict in a civil action.

The Board of Regents made no findings of fact. It merely concluded that the charges that petitioner on two separate occasions undertook to perform a criminal abortion on investigators Middleton and Berg respectively have been sustained. The charges are couched in the language of the statute. Such findings are inadequate and compel a remission to the Regents. (Matter of Pollock v. Board of Regents, 266 App. Div. 696; Matter of Elite Dairy Products v. Ten Eyck, 271 N. Y. 488.)

The cross-examination of the witness Middleton was unduly restricted by the hearing chairman, although no objection was made by counsel for the prosecution. We cannot tell what might have developed under this cross-examination had petitioner been permitted to proceed. Generally speaking, in quasi-judicial proceedings before administrative agencies where the same agency is both the prosecutor and judge, with the resultant tendency to' predetermination, practically the only shield left to the accused is his right of cross-examination. Deprived of this, he stands .defenseless before a tribunal predisposed to conviction. This right should therefore be preserved in full vigor.

The determination and order should be annulled and the matter' remitted.

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Bliss, J.

This is another case in which a doctor’s license to practice medicine has been revoked solely upon the testimony of paid departmental investigators. The effect of such evidence has been discussed in Matter of Weinstein v. Board of Regents (267 App. Div. 4), decided herewith. Here each investigator with obvious falsity, denied that she sought to trap petitioner, although each admitted that she gave him a false name and falsely stated to him that she was pregnant. Neither investigator was actually pregnant and one had passed the menopause. An abortion was never mentioned. The evidence is quite unsubstantial and there is a total lack of supporting facts. It would sustain neither a criminal conviction nor a verdict in a civil action.

The Board of Regents made no findings of fact. It merely concluded that the charges that petitioner on two separate occasions undertook to perform a criminal abortion on investigators Middleton and Berg respectively have been sustained. The charges are couched in the language of the statute. Such findings are inadequate and compel a remission to the Regents. (Matter of Pollock v. Board of Regents, 266 App. Div. 696; Matter of Elite Dairy Products v. Ten Eyck, 271 N. Y. 488.)

The cross-examination of the witness Middleton was unduly restricted by the hearing chairman, although no objection was made by counsel for the prosecution. We cannot tell what might have developed under this cross-examination had petitioner been permitted to proceed. Generally speaking, in quasi-judicial proceedings before administrative agencies where the same agency is both the prosecutor and judge, with the resultant tendency to' predetermination, practically the only shield left to the accused is his right of cross-examination. Deprived of this, he stands .defenseless before a tribunal predisposed to conviction. This right should therefore be preserved in full vigor.

The determination and order should be annulled and the matter' remitted.

Epstein v. Board of Regents of University of New York, 267 A.D. 27, 44 N.Y.S.2d 921, 1943 N.Y. App. Div. LEXIS 5960 (N.Y. Ct. App. 1943).

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