Opinion
May 2, 1996
In August 1993, a Hearing Committee of the State Board for Professional Medical Conduct rendered a final determination sustaining findings, among others, that petitioner had practiced the profession of medicine fraudulently and failed to maintain adequate records with respect to a female patient (hereinafter patient A) by making a false entry concerning the extent of her blood loss in connection with an October 19, 1990 abortion procedure. That determination was confirmed following judicial review by this Court, although our annulment of a finding of guilt on a specification concerning another patient required remittal to the Hearing Committee on the issue of penalty only ( Matter of Hachamovitch v. State Bd. for Professional Med. Conduct, 206 A.D.2d 637, lv denied 84 N.Y.2d 809).
In November 1994, subsequent to the Hearing Committee's determination to leave the penalty unchanged, petitioner made application to respondent Jonathan Brandes, the Administrative Law Judge who presided over the administrative hearing on the charges against petitioner, to reopen the proceedings to permit petitioner to introduce allegedly newly discovered evidence and for an order directing respondent Office of Professional Medical Conduct to provide petitioner with all exculpatory material in its possession. Citing his lack of authority, Brandes denied the application, prompting petitioner to commence this CPLR article 78 proceeding in the nature of mandamus.
We conclude that the proceeding is lacking in merit and accordingly dismiss the petition. Fundamentally, mandamus is an extraordinary remedy, available, as against an administrative officer, only to compel the performance of a duty enjoined by law ( see, Klostermann v. Cuomo, 61 N.Y.2d 525, 539-540). In view of the fact that, at the time of the instant application, both administrative and judicial review had been completed (as it pertained to the issue of petitioner's guilt of the charges concerning patient A) and there being no statutory or regulatory provision granting petitioner the right to have the proceeding reopened on newly discovered evidence, respondents were under no clear legal duty to act upon petitioner's application ( see, Matter of Saraf v. Vacanti, 223 A.D.2d 836, 838; see also, Matter of Evans v. Monaghan, 306 N.Y. 312, 323-324; People ex rel. Finnegan v. McBride, 226 N.Y. 252, 258-260). Moreover, even if respondents could be compelled to consider petitioner's application, petitioner has not satisfied his burden of showing, among other things, that the proffered evidence was likely to have affected the outcome of the proceeding and could not have been obtained prior to the conclusion of the evidentiary hearing in the exercise of due diligence ( see, Olwine, Connelly, Chase, O'Donnell Weyher v. Valsan, Inc., 226 A.D.2d 102; Matter of Gagliardi v. Department of Motor Vehicles, 144 A.D.2d 882, 883, lv denied 74 N.Y.2d 606).
As a final matter, the present claim arising out of respondents' alleged withholding of exculpatory material is unpreserved by virtue of petitioner's failure to raise it in the first CPLR article 78 proceeding and is found to be meritless in any event ( see, Matter of Milburn v. New York State Div. of Parole, 173 A.D.2d 1016, 1017).
Mikoll, J.P., Crew III, Yesawich Jr. and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.