Regarding the issue of the alleged delays in the investigation and the bringing of disciplinary charges against petitioner, "[t]here is no statute of limitations and the doctrine of laches does not apply to physician disciplinary proceedings" ( Matter of Pearl v. New York State Bd. for Professional Med. Conduct, 295 A.D.2d 764, 766, 744 N.Y.S.2d 64 [2002], lv denied 99 N.Y.2d 501, 752 N.Y.S.2d 588, 782 N.E.2d 566 [2002] ; seeMatter of Schoenbach v. DeBuono, 262 A.D.2d 820, 821, 692 N.Y.S.2d 208 [1999], lv denied 94 N.Y.2d 756, 703 N.Y.S.2d 73, 724 N.E.2d 769 [1999] ). Accordingly, only if petitioner demonstrates that she suffered actual prejudice by the delay will the determination be annulled (see Matter of Monti v. Chassin, 237 A.D.2d 738, 740, 655 N.Y.S.2d 145 [1997] ; Matter of Rojas v. Sobol, 167 A.D.2d 707, 708, 563 N.Y.S.2d 284 [1990], lv denied 77 N.Y.2d 806, 568 N.Y.S.2d 914, 571 N.E.2d 84 [1991] ). To that end, petitioner's claim of prejudice rests on the notion that the Hearing Committee did not have the entire medical record for each subject patient.
This contention is unavailing. First, under New York law there is no general statute of limitations governing the initiation of a disciplinary proceeding, see Monti v. Chassin, 655 N.Y.S.2d 145, 147 (3d Dep't 1997), and to prevail on the basis of delay the subject of a disciplinary hearing must demonstrate actual prejudice, see id.; Lawrence v. De Buono, 673 N.Y.S.2d 773, 774 (3d Dep't 1998) (citing cases); see also Cortlandt Nursing Home v. Axelrod, 66 N.Y.2d 169, 177 (1985) ("The passage of time, standing alone, does not . . . serve as a basis for judicial intervention . . . into the administrative process."); Gold v. Chassin, 632 N.Y.S.2d 276, 277 (3d Dep't 1995). Second, to the extent that DeMichele argues that CPLR § 213 should apply to a proceeding brought pursuant to § 3020-a, he has cited no cases, and we have found none, in support of that proposition.
Initially, petitioner argues that he suffered prejudice as the result of the delay in the commencement of this disciplinary matter. It is undisputed that the investigation was commenced in 1989 and eight years transpired before charges were brought. Although the length of time between the initiation of the investigation and the commencement of the disciplinary proceeding is troubling, this disciplinary proceeding is not governed by a Statute of Limitations (see, Matter of Monti v. Chassin, 237 A.D.2d 738, 740) and, absent a manifestation of actual prejudice to petitioner, such delay, without more, fails to satisfy petitioner's burden of proof (see, Matter of Lawrence v. De Buono, 251 A.D.2d 700; Matter of Monti v. Chassin, supra, at 740; Matter of Hubsher v. De Buono, 232 A.D.2d 764, lv denied 89 N.Y.2d 810). Petitioner's unsubstantiated allegations, including vague intimations that his memory of the events had eroded with the passage of time, are insufficient to sustain a claim of prejudice (see, Matter of Galin v. De Buono, 259 A.D.2d 788, 789-790, 686 N.Y.S.2d 190, 193). Because petitioner has failed to submit actual proof that he suffered prejudice as a result of the delay, this claim must be rejected (see, Matter of Lawrence v. De Buono, supra; Matter of Hubsher v. De Buono, supra, at 765). Petitioner next contends that the evidence presented at the hearing was not sufficient to support the ARB's findings.
Petitioner commenced this CPLR article 78 proceeding to annul the Committee's determination. Although petitioner maintains that he was substantially prejudiced by the delay of 11 years between the charged misconduct with patient A and the commencement of these proceedings, he has not established that he endured actual prejudice as a result (see,Matter of Lawrence v. De Buono, 251 A.D.2d 700, 702; Matter of Monti v. Chassin, 237 A.D.2d 738, 740; Matter of Rojas v. Sobol, 167 A.D.2d 707, 708, lv denied 77 N.Y.2d 806); he has not shown that witnesses familiar with his office chaperone policy — a core defense to the charges — were not available to testify at the hearing, but would have been had the hearing been expeditiously commenced. Furthermore, the record evidence amply supports the Committee's determination.
Petitioner first contends that the proceeding was barred by laches. Although approximately 13 1/2 years transpired between the date of the commencement of the alleged misconduct and the initiation of the disciplinary proceeding, the doctrine of laches does not apply to physician disciplinary proceedings ( see, Matter of Wolf v. Ambach, 95 A.D.2d 877; Matter of Chaplan v. Ambach, 91 A.D.2d 736). Moreover, petitioner has failed to demonstrate that the delay caused him actual prejudice ( see, Matter of Lawrence v. DeBuono, 251 A.D.2d 700, 701; Matter ofMonti v. Chassin, 237 A.D.2d 738, 740; Matter of Hubsher v. De Buono, 232 A.D.2d 764, 765, lv denied 89 N.Y.2d 810). Based on a review of the record, proof of the alleged misconduct was primarily based upon the testimony of the complaining witnesses and petitioner, who recalled details of the events with clarity ( see, Matter of Rojas v. Sobol, 167 A.D.2d 707, 708, lv denied 77 N.Y.2d 806), and there is no indication that the delay thwarted petitioner's ability to mount a defense against the charges ( cf., Matter of Cortlandt Nursing Home v. Axelrod, 66 N.Y.2d 169, 180, cert denied 476 U.S. 1115). Petitioner also claims that the Hearing Committee's determination to sustain the charges of sexual misconduct and negligence was arbitrary and capricious. Our inquiry in this regard is limited to ascertaining whether the determination was supported by substantial evidence ( see, Matter of Franco v. State Bd. for Professional Med. Conduct, 240 A.D.2d 869; Matter of Adler v. Bureau of Professional Med. Conduct, State of N.Y., Dep
The stay was lifted by order of the First Department in July 1995 ( 217 A.D.2d 446). The unexplained eight-year delay in filing the statement of charges is indeed disquieting, but does not require dismissal, for no Statute of Limitations governs the initiation of a disciplinary proceeding ( see, Matter of Monti v. Chassin, 237 A.D.2d 738, 740 [5 to 11-year delay]), and petitioner has failed to establish that he suffered actual prejudice by reason of this delay ( see, Matter of Lawrence v. DeBuono, 251 A.D.2d 700, 701-702 [8 1/2-year delay]). Bald allegations that with the passage of time witnesses' memories dim are not enough; nor has petitioner demonstrated that there were any documents lost in the interim which petitioner claims would have exonerated him ( see, Matter of Hubsher v. DeBuono, 232 A.D.2d 764, 765, lv denied 89 N.Y.2d 810). Not insignificantly, the record reveals petitioner was able to mount an adequate defense.
Petitioner treated patient A from November 25, 1986 to June 30, 1987 and treated patient B from June 17, 1987 to July 25, 1987. To be sure, "[w]here administrative delay has significantly and irreparably handicapped a private party in mounting a defense in an adversary administrative proceeding, the agency, or court reviewing a final administrative order, is authorized to dismiss the proceeding" ( Matter of Cortlandt Nursing Home v. Axelrod, 66 N.Y.2d 169, 180, cert denied 476 U.S. 1115). This Court, however, consistently has held, and the Court of Appeals has made clear, that "absent proof of actual prejudice, mere delay is not the basis for annulling a determination in a disciplinary hearing" ( Matter of Rojas v. Sobol, 167 A.D.2d 707, 708, lv denied 77 N.Y.2d 806; see, Matter of Monti v. Chassin, 237 A.D.2d 738, 740 [5 to 11-year delay]; Matter of Matala v Board of Regents, 183 A.D.2d 953, 956 [14-year delay]; see also, Matter of Cortlandt Nursing Home v. Axelrod, supra, at 177). Although the delay here indeed is significant, our review of the record fails to substantiate petitioner's claim of actual prejudice, which primarily rests upon her assertion that her recollection of the treatment provided to patients A and B, as well as patient B's recollection of the treatment rendered, have dimmed with the passage of time.
Such evidence, being relevant, probative and believable, constitutes substantial evidence of misconduct (see, Matter of Tsakonas v. Dowling, 227 A.D.2d 729, 730, lv denied 88 N.Y.2d 812; Matter of Damino v. Board of Regents, 124 A.D.2d 271, 273, lv denied 70 N.Y.2d 613). Petitioner has likewise failed to demonstrate how he was prejudiced by the fact that several of the allegations involve conduct that purportedly occurred three to five years before the charges against him were lodged. His conclusory assertions that the delay impeded his ability to investigate and prepare a defense are insufficient to establish a right to annulment on this ground (see, Matter of Monti v. Chassin, 237 A.D.2d 738; Matter of Hubsher v. DeBuono, 232 A.D.2d 764, 765, lv denied 89 N.Y.2d 810; Matter of Rojas v. Sobol, 167 A.D.2d 707, 708, lv denied 77 N.Y.2d 806). And, petitioner waived any claim that the outcome of the hearing was affected by bias on the part of the Hearing Committee chairperson when, after being informed that the latter was acquainted with one of the BPMC's witnesses, petitioner affirmatively stated, through counsel, that he had no problem with continuing the hearing under those circumstances (see, Matter of Kabnick v. Chassin, 223 A.D.2d 935, 936, affd 89 N.Y.2d 828). This claim would fail in any event, for there is no indication that the outcome of the hearing flowed from the alleged bias (see, id., at 936-937; see also, Matter of Binenfeld v. New York State Dept. of Health, 226 A.D.2d 935, lv dismissed 88 N.Y.2d 1052).