Pugliese v. Hamburg

Appellate Division of the Supreme Court of New York

Pugliese v. Hamburg

223 A.D.2d 383, 636 N.Y.S.2d 298, 1996 N.Y. App. Div. LEXIS 77

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 9, 1996

StatusPublished

This text of 223 A.D.2d 383 (Pugliese v. Hamburg) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pugliese v. Hamburg, 223 A.D.2d 383, 636 N.Y.S.2d 298, 1996 N.Y. App. Div. LEXIS 77 (N.Y. Ct. App. 1996).

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Opinion

Order, Supreme Court, New York County (Carol Arber, J.), entered August 16, 1994, which denied petitioner chiropractor’s application pursuant to CPLR article 78 to annul respondent’s determination that petitioner’s use of a Continental X-ray Corporation, model Hadley-325 X-ray system involves fluoroscopy in violation of Education Law § 6551 (2) (a), and dismissed the petition, unanimously affirmed, without costs.

Whether the "videofluoroscope” or "visualizer” that petitioner seeks to use in his practice is a fluoroscope prohibited to chiropractors by the plain language of Education Law § 6551 (2) (a) is a technical question that should be left to the expertise of the agency responsible for administering the statute, provided its decision is not irrational or unreasonable (see, Matter of New York State Assn. of Life Underwriters v New York State Banking Dept., 83 NY2d 353, 360), clearly not the case here. As the IAS Court aptly advised petitioner, arguments based upon potential benefits resulting from allowing chiropractors to use videofluoroscopy should be addressed to the Legislature, not the courts (see, Matter of RIHGA Intl. U.S.A. v New York State Liq. Auth., 84 NY2d 876, 879). Concur—Ellerin, J. P., Rubin, Nardelli, Tom and Mazzarelli, JJ.

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Order, Supreme Court, New York County (Carol Arber, J.), entered August 16, 1994, which denied petitioner chiropractor’s application pursuant to CPLR article 78 to annul respondent’s determination that petitioner’s use of a Continental X-ray Corporation, model Hadley-325 X-ray system involves fluoroscopy in violation of Education Law § 6551 (2) (a), and dismissed the petition, unanimously affirmed, without costs.

Whether the "videofluoroscope” or "visualizer” that petitioner seeks to use in his practice is a fluoroscope prohibited to chiropractors by the plain language of Education Law § 6551 (2) (a) is a technical question that should be left to the expertise of the agency responsible for administering the statute, provided its decision is not irrational or unreasonable (see, Matter of New York State Assn. of Life Underwriters v New York State Banking Dept., 83 NY2d 353, 360), clearly not the case here. As the IAS Court aptly advised petitioner, arguments based upon potential benefits resulting from allowing chiropractors to use videofluoroscopy should be addressed to the Legislature, not the courts (see, Matter of RIHGA Intl. U.S.A. v New York State Liq. Auth., 84 NY2d 876, 879). Concur—Ellerin, J. P., Rubin, Nardelli, Tom and Mazzarelli, JJ.

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Bluebook (online)

223 A.D.2d 383, 636 N.Y.S.2d 298, 1996 N.Y. App. Div. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pugliese-v-hamburg-nyappdiv-1996.

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