Grossman v. Hilleboe

16 A.D.2d 893, 228 N.Y.S.2d 835, 1962 N.Y. App. Div. LEXIS 9228

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 12, 1962
• Status: Published

Opinions

Proceeding under article 78 of the Civil Practice Act (transferred to the Appellate Division of the Supreme Court in the First Judicial Department by an order of the Supreme Court at Special Term, entered in New York County) to review and annul a determination of the Health Commissioner of the State of New York that petitioner had, in four separate respects, violated article 33 of the Public Health Law. Petitioner was assessed a penalty of $250 for each violation.

Memorandum by the Court. Determination of Health Commissioner dated August 6, 1959 modified, on the law and on the facts, to the extent of annulling the first, second and fourth decretal paragraphs, reducing to $50 the penalty assessed in respect of the “ Third ” charge, and, as so modified, confirmed, without costs. The annulled decretal paragraphs relate to charges denominated “ First ”, “ Second ” and “ Fourth ” of the notice of hearing dated May 5, 1959; they are not substantiated by the record of the proceedings. (Matter of Stammer v. Board of Regents, 287 N. Y. 359.) There is no legal evidence that the petitioner violated the Public Health Law in that he did not in good faith prescribe and administer narcotic drugs (§ 3330); or that he made and uttered false prescriptions for such drugs (§ 3351); or that he unlawfully possessed such drugs (§ 3305). Although the Commissioner is not bound by the laws of evidence, his determination must be grounded on legal evidence sufficient to sustain it. (Public Health Law, § 12-a, subd. 2.) The determination as to the “ Third ” charge is sustained by the testimony, reports of the health officers (Public Health Law, § 10, subd. 2) and the admissions of the petitioner. The record establishes the petitioner violated section 3344 of the Public Health Law in that he treated many habitual users of narcotic drugs over long periods and failed to report their names and addresses to the Department of Health. It was within the competence of the respondent to institute the proceeding, make the determination and assess the penalty. (Public Health Law, §§ 12, 12-a, 206; Godfrey v. Winona Lake Development Co., 194 Misc. 905; see, also, Hilleboe v. Faulkner, 10 A D 2d 806; Matter of Sutton v. Hilleboe, 12 A D 2d 469.)

* The holding in Matter of New Jersey Fid. & Plate Glass Ins. Co. v. Van Schaick (236 App. Div. 223) that the Superintendent of Insurance was without statutory power to impose the penalty is distinguishable on the ground

that the provisions of the Public Health Law grant to the Commissioner of Health broad powers to “ enforce the public heath law ” (§ 206, subd. 1, par. [f]) and to conduct hearings (subd. 4). The limitation of subdivision 2 of section 50 of the Civil Practice Act is inapplicable to this proceeding. (Matter of Corwin v. Mercier, 14 A D 2d 652.) The reduction to $50 of the penalty in respect of the “ Third ” charge is in accord with the statute in force (Public Health Law, § 12) prior to July 1, 1957, during which the violation occurred.

Chapter 317 of the Laws of 1961, amending subdivision 4 of section 206 of the Public Health Law by adding paragraph (e), serves to confirm the antecedent authority of the Commissioner to assess penalties. (N. Y. S. Legis. Ann., 1961, p. 209.)