Opinion
May 16, 1995
Appeal from the Supreme Court, New York County (Lewis Friedman, J.).
Respondent's rule requiring cause for its revoking or suspending provisional as well as final approvals of asbestos training safety programs ( 10 NYCRR 73.9), and its failure to revoke, suspend or otherwise take any action with respect to petitioner's provisional approval within the six-month maximum life span of such an approval ( 10 NYCRR 73.8 [a]), supported a legitimate claim of entitlement to continuation of the approval (see, Barry v Barchi, 443 U.S. 55, 64, n 11; Richardson v Town of Eastover, 922 F.2d 1152, 1158), which may be invoked at a postsuspension hearing (see, Barry v Barchi, supra, at 66). Under the three-pronged test set forth in Mathews v Eldridge ( 424 U.S. 319, 335), petitioner's interest in the continuation of its program is strong, having operated it for at least nine months, employed several people and made capital expenditures (see, Charry v Hall, 709 F.2d 139); respondent's interest in not conducting a postsuspension hearing is slight, graduates of petitioner's training program being subject to respondent's certification requirements before engaging in actual asbestos removal; and, as the decision to revoke was based on discrepancies in a class attendance record, a hearing at which the credibility of witnesses can be assessed, will reduce the risk of error. There is no merit to respondent's other argument that petitioner's possible lack of authority to do business in New York is a jurisdictional bar (Tri-Terminal Corp. v CITC Indus., 78 A.D.2d 609).
Concur — Rosenberger, J.P., Wallach, Rubin, Kupferman and Asch, JJ.