Egan Jr., J.P. Cross appeals (transferred to this Court by order of the Appellate Division, Second Department) from a judgment of the Supreme Court (Paul J. Baisley Jr., J.), entered December 31, 2020 in Suffolk County, which, among other things, partially granted petitionersโ application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent Administrative Board of the New York State Unified Court System denying certification for certain Supreme Court justices. The underlying facts are more fully set forth in our decision in ( Matter of Gesmer v. Administrative Bd. of the N.Y. State Unified Ct. Sys., 194 A.D.3d 180, 145 N.Y.S.3d 145 [3d Dept. 2021], appeal dismissed 37 N.Y.3d 1103, 157 N.Y.S.3d 405, 178 N.E.3d 1284 [2021] ). Briefly, in September 2020, respondent Administrative Board of the New York State Unified Court System (hereinafter the Board), citing budgetary problems, denied the applications of 46 out of 49 elected Supreme Court justices who had sought certification to serve after reaching the mandatory retirement age of 70.
It is noted that Paul Clemente has filed a notice of appeal from the final decree, which has not yet been perfected. The appeal from that final decree will bring up for review "any non-final judgment or order which necessarily affects the final judgment" (CPLR 5501[a][1]), including a ruling on jurisdictional matters (see e.g. Federal Natl Mtge. Assn.v.Smith, 219 A.D.3d 938, 940, 195 N.Y.S.3d 704 [2d Dept. 2023]; Matter of Joseph II.v.Brandy JJ., 210 A.D.3d 1315, 1317, n 2, 179 N.Y.S.3d 382 [3d Dept. 2022]; Matter of Gesmer v. Administrative Bd. of the N.Y. State Unified Ct. Sys., 194 A.D.3d 180, 184 n 4, 145 N.Y.S.3d 145 [3d Dept. 2021], appeal dismissed 37 N.Y.3d 1103, 157 N.Y.S.3d 405, 178 N.E.3d 1284 [2021]). Egan Jr., J.P., Pritzker, Fisher and Powers, JJ., concur.
An IS 1 (salary grade 18) will independently undertake such investigations, and they may represent the agency on joint operations with various federal, state, county and municipal law enforcement agencies, sometimes as a team leader. Although GOER summarily concluded that the duties described were appropriate to grade 18, we may consider the affidavit provided by the Division manager explaining the rationale for the determination, "as there was no administrative hearing and the affidavit was based on firsthand knowledge of the decision-making process regarding petitioner[sโ] application" (Matter of Streety v. Annucci, 203 A.D.3d 1509, 1511, 165 N.Y.S.3d 189 [3d Dept. 2022] [internal quotation marks, brackets and citation omitted]; seeMatter of Gesmer v. Administrative Bd. of the N.Y. State Unified Ct. Sys., 194 A.D.3d 180, 184 n. 2, 145 N.Y.S.3d 145 [3d Dept. 2021], appeal dismissed 37 N.Y.3d 1103, 157 N.Y.S.3d 405, 178 N.E.3d 1284 [2021] ). Judicial review of GOER's determination in this context is limited to assessing whether it is arbitrary and capricious (see CPLR 7803[3] ).
"[A] court's review of administrative actions is limited to the record made before the agency" ( Matter ofPascazi v. New York State Bd. of Law Examiners, 151 A.D.3d 1324, 1326, 57 N.Y.S.3d 234 [2017] [internal quotation marks and citation omitted]). Where there was no administrative hearing, the agency may submit an employee's or official's affidavit to explain the information that was before the agency and the rationale for its decision, and courts may consider such an affidavit even though it was not submitted during the administrative process (seeMatter of Gesmer v. Administrative Bd. of the N.Y. State Unified Ct. Sys., 194 A.D.3d 180, 184 n. 2, 145 N.Y.S.3d 145 [2021], appeal dismissed 37 N.Y.3d 1103, 157 N.Y.S.3d 405, 178 N.E.3d 1284 [2021] ; Matter of Weissenburger v. Annucci, 155 A.D.3d 1150, 1152, 64 N.Y.S.3d 374 [2017] ; Matter of Kirmayer v. New York State Dept. of Civ. Serv., 24 A.D.3d 850, 852, 805 N.Y.S.2d 185 [2005] ). In contrast, however, expert opinions expressed in affidavits that postdate the agency determination at issue may not be relied upon, as such affidavits were not part of the administrative record (seeMatter of Best Payphones, Inc. v. Public Serv. Commn. of the State of N.Y., 192 A.D.3d 1416, 1420, 145 N.Y.S.3d 173 [2021], lv denied 37 N.Y.3d 914, 2021 WL 5463734 [2021] ).
Further, "[j]udicial review of an administrative determination is limited to the grounds invoked by the agency and a reviewing court which finds those grounds insufficient or improper may not sustain the determination by substituting what it deems to be a more appropriate or proper basis" ( Matter of Parkmed Assoc. v. New York State Tax Commn., 60 N.Y.2d 935, 936, 471 N.Y.S.2d 44, 459 N.E.2d 153 [1983] ; seeMatter of People v. Schofield, 199 A.D.3d 5, 11, 153 N.Y.S.3d 630 [2021] ). In assessing those grounds, however, we may consider the affidavit provided by the Assistant Commissioner explaining the rationale for the determination, "as there was no administrative hearing and [the affidavit] was based on firsthand knowledge of the decision-making process regarding petitioner's application" ( Matter of Weissenburger v. Annucci, 155 A.D.3d at 1152, 64 N.Y.S.3d 374 ; seeMatter of Gesmer v. Administrative Bd. of the N.Y. State Unified Ct. Sys., 194 A.D.3d 180, 184 n. 2, 145 N.Y.S.3d 145 [2021], appeal dismissed 37 N.Y.3d 1103, 157 N.Y.S.3d 405, 178 N.E.3d 1284 [2021] ). Petitioner argues that DOCCS's determination was arbitrary and capricious in that it failed to consider the factors set forth in Correction Law ยง 753 and, moreover, that its denial of his application as inconsistent with the public interest is not supported by a rational basis in the record.
However, respondents' answer, together with the affidavit of Justin Barry, the Chief of Administration for UCS and a member of the Vaccination Exemption Committee (hereinafter the Committee), outlined the evaluation process and provided a specific explanation for the denial of each application. Where, as here, there was no administrative hearing, respondents were entitled to submit Barry's affidavit to provide the relevant information and rationale for the Committee's decisions (see Matter of Gesmer v Administrative Bd. of the N.Y. State Unified Ct. Sys., 194 A.D.3d 180, 184 n 2 [3d Dept 2021], appeal dismissed 37 N.Y.3d 1103 [2021]).
It is noted that Paul Clemente has filed a notice of appeal from the final decree, which has not yet been perfected. The appeal from that final decree will bring up for review "any non-final judgment or order which necessarily affects the final judgment" (CPLR 5501 [a] [1]), including a ruling on jurisdictional matters (see e.g. Federal Natl. Mtge. Assn. v Smith, 219 A.D.3d 938, 940 [2d Dept 2023]; Matter of Joseph II. v Brandy JJ., 210 A.D.3d 1315, 1317 n 2 [3d Dept 2022]; Matter of Gesmer v Administrative Bd. of the N.Y. State Unified Ct. Sys., 194 A.D.3d 180, 184 n 4 [3d Dept 2021], appeal dismissed 37 N.Y.3d 1103 [2021])
Further, "[j]udicial review of an administrative determination is limited to the grounds invoked by the agency and a reviewing court which finds those grounds insufficient or improper may not sustain the determination by substituting what it deems to be a more appropriate or proper basis" (Matter of Parkmed Assoc. v New York State Tax Commn., 60 N.Y.2d 935, 936 [1983]; see Matter of People v Schofield, 199 A.D.3d 5, 11 [2021]). In assessing those grounds, however, we may consider the affidavit provided by the Assistant Commissioner explaining the rationale for the determination, "as there was no administrative hearing and [the affidavit] was based on firsthand knowledge of the decision-making process regarding petitioner's application" (Matter of Weissenburger v Annucci, 155 A.D.3d at 1152; see Matter of Gesmer v Administrative Bd. of the N.Y. State Unified Ct. Sys., 194 A.D.3d 180, 184 n 2 [2021], appeal dismissed 37 N.Y.3d 1103 [2021]). Petitioner argues that DOCCS's determination was arbitrary and capricious in that it failed to consider the factors set forth in Correction Law ยง 753 and, moreover, that its denial of his application as inconsistent with the public interest is not supported by a rational basis in the record.