Greco v. Board of Examiners of Nursing Home Administrators

91 A.D.2d 1108, 458 N.Y.S.2d 343, 1983 N.Y. App. Div. LEXIS 16449

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 13, 1983
• Status: Published

Opinions

— Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the Board of Examiners of Nursing Home Administrators which revoked petitioner’s license as a nursing home administrator. Petitioner was employed by Parkview Nursing Home as administrator. As a result of an investigation of the nursing home industry, it was determined that petitioner had accepted unreported income in addition to his salary and had participated in several kickback schemes with nursing home suppliers. In return for his promise to assist the Special Prosecutor conducting the investigation to indict and convict petitioner’s employer, Birnbaum, owner of Parkview Nursing Home, and one Ferrara, a linen supplier, petitioner was granted transactional immunity from prosecution by Special Prosecutor Miller for any criminal acts allegedly committed -while at Parkview. Miller also promised to write to any State agency that “might want to take away [petitioner’s] license” to explain the extent of his co-operation. Petitioner thereafter testified before Grand Juries investigating Birnbaum and Ferrara, and at Birnbaum’s trial when Birnbaum was convicted of larceny for receiving cash payments from vendors. Ferrara was indicted for perjury but petitioner never testified at his trial although notified he would be called as a witness. It is the contention of the office of the Special Prosecutor that petitioner avoided appearing and “deliberately secreted” himself until the trial was concluded by traveling between Utica, New York, and Florida. After Ferrara was convicted of perjury, Miller wrote to respondent alleging petitioner’s failure of co-operation and enclosed a copy of the incriminating testimony given by petitioner at Birnbaum’s trial. Respondent thereupon issued a notice of hearing and charges alleging that petitioner acted in contravention of certain nursing home regulations (see 10 NYCRR 96.1 [m] [8]). After a hearing, the administrative law judge concluded that petitioner violated section 2897 (subd 1, par [f]) of the Public Health Law, and failed to mitigate his misconduct by not fully co-operating with the authorities against Ferrara. His nursing home administrator’s license was revoked and this proceeding ensued seeking annulment on several grounds. First it is petitioner’s contention that the immunity obtained in the criminal proceedings bars revocation of his nursing home administrator’s license. We cannot accept this argument. While a promise made by a Special Prosecutor must be treated as a highly significant factor by another State agency called on to enforce the promise, a prosecutor cannot divest an independent body of its lawful discretion by promising broad immunity (Matter of Chaipis v State Liq. Auth., 44 NY2d 57, 64). If a license is involved, the authority may not ignore its responsibility as an arm of the State, and if a prosecutor has made a representation, the licensing authority must consider the extent of the licensee’s cooperation as well as whether he continues to be a source of harm to the public. “Absent stated countervailing considerations, a promise or representation by one agent of the State should be fulfilled by other agents of the State” [id., at pp 66-67). Moreover, a revocation of a license as a nursing home administrator is not that type of punishment which is considered a “penalty or forfeiture” which is immunized by CPL 50.10; rather, it falls closer into the category of a disciplinary sanction turning on the fitness of that particular person to practice under the license (Matter of Anonymous Attorneys, 41 NY2d 506; Matter of Miles v Nyquist, 60 AD2d 133). Here the findings of the hearing officer clearly demonstrate that he was aware of the limits of the Special Prosecutor’s representations, that the latter’s office “did not control the Public Health Department”, and the failure of petitioner to fully co-operate with the Special Prosecutor. Substantial evidence supports respondent’s determination. Petitioner also contends that he was deprived of effective assistance of counsel because of an alleged conflict of interest resulting from the formation of a partnership between his counsel and former Special Prosecutor Miller. The partnership was formed after the first administrative hearing where Miller testified, but before the second hearing some five months later. At that time, petitioner’s counsel disclosed the formation of the partnership on the record and advised the hearing officer that he perceived no conflict of interest to either side. There was no objection from petitioner and the hearing proceeded. The record clearly demonstrates that petitioner was fully protected by “meaningful representation” throughout the entire proceeding by counsel of his own choosing (People v Baldi, 54 NY2d 137; People v Aiken, 45 NY2d 394). While it may have been preferable to make the disclosure of the formation of the partnership at an earlier date, we find no denial of effective assistance of counsel (see People v Gomberg, 38 NY2d 307). Lastly, we find the determination herein fully supported by sufficient and proper legal conclusions, neither arbitrary nor capricious, and supported by substantial evidence. While petitioner may be a competent nursing home operator, it is up to the agency involved to determine what sanctions are necessary to protect the integrity of that agency and provide punishment for misconduct involving grave moral turpitude (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Loren v Board of Examiners of Nursing Home Administrators, Dept. of Health, State of N. Y., 77 AD2d 699, mot for lv to app den 52 NY2d 701). Determination confirmed, and petition dismissed, without costs. Kane, J. P., Casey and Yesawich, Jr., JJ., concur.