Opinion
July 3, 1980
Proceeding initiated in this court pursuant to subdivision 4 of section 6510 Educ. of the Education Law to annul a determination of the Commissioner of Education which remanded a disciplinary proceeding against petitioner to a panel of the New York State Board for Professional Engineering for a new hearing. On January 9, 1979, petitioner, a licensed professional engineer, was charged with certain acts of professional misconduct in violation of provisions of section 6509 Educ. of the Education Law. Following a hearing before a panel of professional engineers, the panel found that petitioner was not guilty of the charges and recommended that the charges be dismissed. Both a review committee of the Board of Regents and later the Board of Regents itself disagreed with this finding and recommendation, however, and as a result, the matter was remanded to the hearing panel, pursuant to section 6510 (subd 3, par c) of the Education Law, for a new hearing. This proceeding ensued. Petitioner here challenges the nonfinal order remanding this matter to the hearing panel for a new hearing, and, accordingly, he has concededly failed to exhaust his available administrative remedies. Moreover, there has been no showing that petitioner has been aggrieved by the procedures followed or that his further pursuit of the available administrative remedies would be futile, particularly since, should the panel again find petitioner not guilty, its determination will be final and binding upon the Board of Regents (Education Law, § 6510, subd 3, par c). Under these circumstances, this proceeding was prematurely instituted, and, therefore, the petition should be dismissed (CPLR 7801; Matter of Milowitz v. University of State of N.Y., 76 A.D.2d 1004; cf. Press v. County of Monroe, 72 A.D.2d 915; Matter of Schwartz v. Bank St. Coll. of Educ., 51 A.D.2d 947). Petition dismissed, without costs. Greenblott, J.P., Sweeney, Main, Mikoll and Herlihy, JJ., concur.