Opinion
Index No. 905424-22
12-08-2022
In the Matter of the Application of Howard Robins DPM, Petitioner, v. Betty Rosa PHD in her official capacity as NYS Commissioner of Education; NYS Department of Education; NYS Office of the Professions; Sarah Benson, in her official capacity as Deputy Commissioner of NYS Dept. of Education and as the official heading the Office of the Professions; NYS Office of Professional Discipline; Denis Spillane Director of the Office of Professional Discipline; New York State Board of Podiatry; Joseph Anain Jr.; Stanley Chen; Pamela Karman, Jay G Levine; Michael Loshigian; Ricardo Lundi; David Simon, the last seven individual, respondents being individual members of the New York State Board of Podiatry, Respondents.
Jaques G. Simon Attorney at Law P.C. Attorneys for Petitioner By: Jacques G. Simon, Esq. Letitia A. James, Esq. Attorney General of the State of New York Attorney for Respondents By: Nia R. Standford, Assistant Attorney General Jessica Preis, Assistant Attorney General
Unpublished Opinion
Jaques G. Simon Attorney at Law P.C. Attorneys for Petitioner By: Jacques G. Simon, Esq.
Letitia A. James, Esq. Attorney General of the State of New York Attorney for Respondents By: Nia R. Standford, Assistant Attorney General Jessica Preis, Assistant Attorney General
David A. Weinstein, J.
Petitioner Howard Robins DPM, a New York licensed podiatrist with an office in Manhattan, commenced this Article 78 proceeding in New York County Supreme Court on April 21, 2022. The petition arises out of an incident at his podiatry office on September 25, 2019 (Petition ["Pet"] ¶ 1, Ex 5A [New York City Office of Chief Medical Examiner Report] ), in which Robins provided a 78-year-old female patient with her bi-weekly intravenous ozone therapy (Pet, Ex 5A). Following the treatment, the patient remained in the office for observation and, during the observation period, developed respiratory distress and became cyanotic and unresponsive (id.). She was ultimately transported to Mount Sinai West Hospital, where she was pronounced dead (id.). An autopsy was performed on September 26, 2019 and, according to the July 23, 2020 autopsy report of the Office of Chief Medical Examiner City of New York ("NYC OCME"), the "Cause of Death" was a "gas embol complicating direct intravenous injection of ozone-oxygen gas for prevention, not otherwise specified" (id.). As for the "manner of death", Dr. Prial concluded that it was "homicide, (extreme medical negligence)" (id.).
Exhibit 5A, as well as Exhibits 5 through 12 and Exhibit 14 annexed to the petition are subject to a sealing order issued in another Article 78 proceeding in which Robins has challenged certain findings in the Chief Medical Examiner's report concerning his patient's death (see Stipulation and Order to File Records under Seal, dated November 12, 2020, Matter of Howard Robins DPM v New York City Office of Chief Medical Examiner, et al., Supreme Court New York County, Index No. 151399-20). Based on this prior sealing order, and in accordance with 22 NYCRR 202.5(e)(2), petitioner seeks to have these same documents sealed in this proceeding on the ground they concern confidential records maintained in the Chief Medical Examiner's investigation file relating to the death of petitioner's patient (Simon Aff ¶¶ 68-72, Exs A-B). Given the prior order, in the absence of opposition and upon good cause shown, I direct that these same documents be filed under seal with the Albany County Clerk's Office. The discussion of the record in this Decision & Order does not encompass any of the sealed materials.
Ozone therapy entails the administration of ozone gas into a patient's body to treat disease or a wound (see https://www.healthline.com/health/ozone-therapy).
Robins challenged the findings of the NYC OCME report in a separate Article 78 proceeding, which was unsuccessful before the trial court and is now on appeal to the Appellate Division, First Department (Pet ¶¶ 30-31, Ex 27 [ Robins v New York City Office of Chief Medical Examiner et. al., New York County Supreme Court Index No. 151399/2020, Decision and Order on Motion, dated April 7, 2022]). Pending this appeal, Robins now seeks a writ of prohibition under CPLR 7805, and a stay of proceedings under CPLR 7803, to prevent respondents Department of Education and its Commissioner and Deputy Commissioner; the Department's Office of Professional Discipline ("OPD") and its Director Denis Spillane; and the Board of Podiatry and each of its individual members (collectively "respondents") from undertaking any professional disciplinary proceedings against petitioner for his alleged negligent use of intravenous ozone treatment on his now deceased patient (id. ¶ 21).
Robins contends that such disciplinary proceedings fall outside the scope of OPD's powers and subject matter jurisdiction (id. ¶ 22). According to the petition, Robins' use of intravenous ozone treatment was previously approved by OPD in correspondence exchanged between the agency and petitioner's counsel in 2017 and 2018 concerning Robins' alleged posting of misleading statements on his website regarding his use of intravenous ozone treatment that was outside the practice of podiatry (id. ¶ 23, Ex 15). Based on his settlement of this issue with OPD, petitioner contends that the agency is now barred from commencing a disciplinary proceeding against him for any use of intravenous ozone therapy in the context of podiatric medicine, even if such use was negligent (id. ¶ 24).
Attached to the petition is a copy of an April 12, 2017 OPD letter sent to petitioner's counsel in which OPD explains that it believed, based on statements on Robins' public web page, that he was providing ozone therapy medical services that were outside the scope of his license as a podiatrist (Pet, Ex 15). Such services included using ozone therapy to treat herpes, shingles, multiple sclerosis (id.). Moreover, OPD asserted that Robins use of the following marketing language was inappropriate: "so if you have a disease or a condition that you haven't been able to get rid of, Medical Ozone Therapy will most likely be the answer..." (id.). The web page also touted Robins as being "considered by many to be the foremost clinical expert on the use of Ozone in North America with over 21 years of clinical practice and 180,000 treatments performed" (id.). OPD's 2017 letter also advised that Robins improperly claimed that he has "treated patients with asthma, COPD, tobacco and marijuana smokers, as well as pulmonary fibrosis without 'fatal acute respiratory failure' ", demonstrating that he was treating or offering to treat "diseases not recognized as within the podiatric scope of practice" in violation of Education Law § 6509 (id.). Additional OPD correspondence appended to the pleading indicates that, following an April 19, 2018 informal settlement conference, OPD agreed not to seek Robins' suspension along with a $10,000 fine if he agreed to revise his web page to indicate that he can only treat conditions affecting the foot and ankle and, if offering to teach ozone therapy techniques, such would be limited to medical professionals such as physicians (id.). If he agreed to this settlement, OPD stated that it would reduce the proposed monetary fine and charges to $500 for misleading advertising (id). Although the documents attached to the petition do not contain a signed acceptance of this settlement from Robins, the correspondence indicates that he did make the requested changes to his web page (id). This "settlement", however, does not indicate that Robins was free to provide intravenous ozone therapy as a treatment without further scrutiny from OPD.
In correspondence dated January 7, 2020, OPD advised Robins that, as the result of the death of his patient, the agency was conducting an investigation into allegations against him for professional misconduct (Pet, Ex 16).
In addition, petitioner argues that, even if a disciplinary hearing were permitted to go forward regarding his use of the intravenous ozone therapy that preceded his patient's death, any such proceeding would require the Board of Podiatry to assess the medical pathology of the deceased patient as set forth in the autopsy report, which is presently the subject of an appeal before the Appellate Division, and is also beyond the individual Board member's competency, since they are merely podiatrists and not fully licensed physicians (id. ¶ 29). In sum, Robins argues that such a disciplinary review is beyond the scope of OPD's jurisdiction in that it (1) improperly attempts to usurp the Appellate Division's jurisdiction to determine whether the autopsy report is flawed; and (2) is adjudicating outside the Board of Podiatry's expertise (id. ¶¶ 30-44). On this same basis, petitioner also seeks declaratory and injunctive relief against defendants preventing OPD from engaging in any further disciplinary action against Robins (id. ¶¶ 61-64).
Following the filing of this petition in Supreme Court, New York County, respondents cross-moved to change venue to Albany County pursuant to CPLR 511 (NYSCEF Doc No. 42), such application was granted on June 1, 2022 (NYSCEF Doc No. 53). Following transfer of venue, respondents cross-moved to dismiss the petition on the grounds that it fails to state a cause of action, and because this Court lacks personal jurisdiction over the respondents due to petitioner's failure to serve the petition in accordance with the Court's Order to Show Cause, filed April 25, 2022 ("OTSC") (Affirmation of Brian W. Matula, Esq. in Support of Respondents' Cross-Motion to dismiss the Petitioner, dated August 19, 2022 ["Matula Aff"] ¶¶ 13-25; Memorandum of Law In Support of Respondents' Motion to Dismiss the Petition, dated August 19, 2022 ["MOL"] 9-15).
In opposition to the cross-motion, petitioner contends that respondents waived any claim of lack of personal jurisdiction when their counsel appeared and litigated the change of venue motion that was previously granted (Affirmation in Opposition to Cross Motion to Dismiss of Jacques G. Simon, Esq., dated September 2, 2022 ["Simon Aff"] ¶¶ 3-34]). Petitioner further reiterates the arguments in his petition that the Board of Podiatry has no authority to determine his former patient's cause of death (id. at 13-17), nor can it assess whether Robins' use of ozone therapy treatments amounted to medical malpractice under the 2018 settlement agreement (id. at 18-22; Petitioner's Affidavit in Opposition to Cross Motion to Dismiss, sworn to on September 1, 2022 ["Pet Aff" ] ¶¶ 3-16).
In regard to the waiver argument, respondents contend in a reply memorandum that an appearance to contest venue does not waive the right to challenge personal jurisdiction (Reply Memorandum of Law in Further Support of Respondents' Cross-Motion to Dismiss the Petition, dated September 15, 2022 ["Reply MOL"] 6). Furthermore, they argue that a professional disciplinary proceeding concerning petitioner's alleged negligent use of intravenous ozone therapy outside the scope of his podiatric medical practice - that may have caused or contributed to the death of his patient - is not beyond the scope its jurisdiction or in excess of its powers (id. at 9). In addition, OPD contends that petitioner cannot avoid dismissal for failing to exhaust his administrative remedies before the Board of Podiatry simply because he has an appeal pending concerning the NYC OCME report (id. at 10-13).
Discussion
I. Service of the OTSC on Respondents
When a proceeding is commenced by an OTSC, "[t]he method of service provided for in the order to show cause is jurisdictional in nature and must be strictly complied with" (McGreevy v Simon, 220 A.D.2d 713, 713 [2d Dept 1995]. Thus, "where a petitioner fails to comply with the service directives of an order to show cause, the court is without jurisdiction to entertain th[e] proceeding" (id. at 714; see also People ex rel. Curran v Keyser, 196 A.D.3d 980, 981 [3d Dept 2021] ["failure to serve papers in accordance with the directives set forth by the court in an order to show cause is a jurisdictional defect requiring dismissal of the petition"]; Matter of Fonvil v Audain, 131 A.D.3d 630 [2d Dept 2015] [same]).
Here, there is no dispute that the OTSC provided two specific addresses for overnight courier service on respondents: OPD and Dennis Spillane at 1411 Broadway, 10th Floor, New York, New York 10018, and the remaining respondents at 442 E Houston, Street, New York, New York 10002 (OTSC ¶ 4). Rather than complying with this directive, petitioner's affidavits of service indicate that the process server sent the OTSC and supporting papers via overnight mail to two different mailing addresses: 600 Franklin Avenue, Garden City, New York 11530 and 88 Washington Avenue, Albany, New York 12234, under the claim that they were the correct addresses for the parties (see Simon Aff, Exs 3, 5 [Affidavits of Service of Reena Seebalack, sworn to on April 25, 2022]). As a result of this failure to comply with the express directives of the OTSC, this Court lacks personal jurisdiction over the respondents and the petition must be dismissed (see Perez v Harper, 161 A.D.3d 1472, 1473 [3d Dept 2018] [claim of actual notice of proceeding is irrelevant to prevent dismissal where it is undisputed that petitioner failed to meet the service requirements in the order to show cause]; see also Ciochenda v Department of Correctional Services, 68 A.D.3d 1363, 1364 [3d Dept 2009] [petitioner's own affidavit of service confirmed that he did not comply with the directives set forth in the order to show cause and the court properly dismissed the petition for lack of personal jurisdiction]).
Petitioner's argument notwithstanding, respondents cross-motion to change venue pursuant to CPLR 511 does not constitute a waiver of the personal jurisdiction defense (see Oneida Public Library Dist. v Town Bd. of Town of Verona, 153 A.D.3d 127, 129 n 2 [3d Dept 2017] ["Contrary to petitioner's contention, respondents did not waive their lack of personal jurisdiction defense by moving to change venue"]; Montgomery v Minarcin, 263 A.D.2d 665, 666 [3d Dept 1999] [CPLR 511 motion does not constitute a waiver of defense for lack of personal jurisdiction]). Indeed, seeking a change of venue in this manner did not even constitute an appearance in this proceeding (Montgomery, 263 A.D.2d at 667). Therefore, the first time respondents actually appeared was when they filed the present motion to dismiss, and thus there was no waiver of their challenge to improper service.
Accordingly, I find that service did not conform to the OTSC, and the matter must be dismissed on that basis.
II. Writ of Prohibition
Even if this Court had personal jurisdiction over the respondents, the petition would still have to be dismissed for failure to state a cause of action, since a writ of prohibition is not available in this context to prevent the OPD from going forward with its administrative process.
Under regulations issued pursuant to Education Law § 6507(h), the OPD Director is to be referred "all complaints and other information relating to licensees authorized to practice a profession under title VIII of the Education Law..." (8 NYCRR § 17.1; see also Education Law § 6507[h] [Department of Education must "establish an administrative unit which shall be responsible for the investigation, prosecution and determination of alleged violations of professional conduct"]). Upon receipt of such a complaint, OPD's director or such designee "shall, in matters involving possible professional misconduct, initiate an investigation of each complaint or other information" (8 NYCRR § 17.2).
Podiatry is included among the professions governed by Title VIII of the Education Law. The Board of Podiatry is appointed by the Board of Regents on recommendation of the Commissioner of the Department of Education for the purpose of assisting the Department on matters of professional licensing and professional conduct (see Education Law § 7003).
If OPD's investigation results in a complaint of a licensee's professional misconduct being founded, the Department of Education must prepare professional misconduct charges, which shall state the material facts that are to be proven at a hearing (see Education Law § 6510[a]-[c]). In the wake of these charges, in accordance with Education Law § 6510, OPD's disciplinary proceedings generally involve a three-part process as follows:
"At the first stage, [OPD] conducts an adversarial hearing on the charges of misconduct. Thereafter, the hearing panel prepares a written report, which includes a recommendation of guilty or not guilty, and, if necessary, a penalty recommendation. The Regents' review committee reviews the report and the hearing transcript, and prepares a written report of its own. The two reports and the hearing transcript are then forwarded to the Board of Regents which renders a final decision" (Matter of Johnson Newspaper Corp. v Melino, 77 N.Y.2d 1, 4 [1990] [internal citations omitted]).
Of course, as with all final administrative determinations, the decisions of the Board of Regents are subject to judicial review pursuant to CPLR article 78 (see Education Law § 6510[5]). Such proceedings are returnable in the Appellate Division, Third Judicial Department, and the Board of Regents' decisions shall not be stayed or enjoined except upon application to the Third Department, with notice to the attorney general and upon a showing of substantial likelihood of success (id.).
Here, petitioner seeks a writ of prohibition to stop the investigation into the allegations of his alleged misconduct before a hearing can even occur. The grounds he proffers for such extraordinary relief are that (1) OPD and the Board of Podiatry would have to adjudicate the cause of his patient's death to determine whether he engaged in podiatric misconduct, a task that petitioner contends is beyond the Board's competency; (2) the cause of the death of Robbins' patient's death as set forth in the NYC OCME report is on appeal to the Appellate Division, and thus OPD is barred from adjudicating the same issue; and (3) Robins previously entered a settlement agreement with OPD concerning his use of intravenous ozone therapy, which he claims preempts any future disciplinary action for any alleged misconduct concerning the use of ozone therapy (Simon Aff ¶¶ 14-46). None of these grounds provide a basis to obtain some sort of advance stay of the administrative investigation, before any disciplinary charges have been brought or proceedings commenced.
The writ sought by petitioner is an extreme remedy that can only be issued "where there is a clear legal right to such relief, and only when the body or officer involved acts or threatens to act without jurisdiction in a matter... over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction" (Matter of HCI Distrib., Inc. v New York State Police, Troop B Commander, 110 A.D.3d 1297, 1298 [3d Dept 2013]). Even in circumstances where a writ of prohibition is permissible, the court has discretion to deny its issuance on such factors as "the availability or unavailability of an adequate remedy on appeal or at law or in equity" (id.). Moreover, "[p]rohibition cannot be used merely to correct errors of law, however egregious and however unreviewable" (Matter of Clark v Boyle, 2022 WL 16841928, *4-5 [1st Dept Nov 10, 2022]; see also Murray v Town of N. Castle, NY, 203 A.D.3d 150, 158 [2d Dept 2022] ["extraordinary remedy of prohibition is never available merely to correct or prevent trial errors of substantive law or procedure, however grievous"]; Matter of Neal v White, 46 A.D.3d 156, 159 [1st Dept 2007] [same]). Indeed, "[t]he orderly administration of justice requires that correction of litigation errors merely be left to the ordinary channels of appeal or review" (Matter of Neal, 46 A.D.3d at 159).
There is no reasonable dispute that OPD has jurisdiction and statutory authority over petitioner, a licensed podiatrist, to undertake disciplinary action against him for his alleged professional misconduct in the use of intravenous ozone therapy on his now deceased patient. Although Robins argues that the Board of Podiatry cannot competently assess the pathological cause of his patient's death, such argument - whatever its merits - is entirely premature since the only allegation is that the Board and OPD are conducting an investigation into allegations of Robins' misconduct in accordance with Education Law § 6507[h] and 8 NYCRR § 17.2. And any evidentiary decision by OPD as to what it may consider at the hearing cannot be addressed through an Article 78 proceeding seeking a writ of prohibition (see Doe v Novello, 39 A.D.3d 1168, 1168 [4th Dept 2007] [physician cannot use article 78 to enjoin Administrative Hearing Officer during Bureau of Professional Medical Conduct hearing from admitting physician's medical records into evidence during proceeding as a "writ of prohibition does not lie as a means of seeking collateral review of a mere error of law in the administrative process, no matter how egregious that error might be"]). Moreover, petitioner's efforts to seek an order of this Court addressing petitioner's disciplinary proceedings constitutes an end run around the Third Department, which is vested by statute with the jurisdiction to review such proceedings.
Pursuant to Education Law § 6509, the term "professional misconduct" encompasses multiple actions, including, but not limited to: "practicing the profession fraudulently, beyond its authorized scope, with gross incompetence, with gross negligence on a particular occasion or negligence or incompetence on more than one occasion" (Education Law § 6509[2]).
The same analysis applies to petitioner's argument that he previously entered a settlement agreement with OPD by which the agency is alleged to be prohibited from determining whether Robins' use of intravenous ozone therapy was outside the scope of his podiatric license or otherwise negligently administered. Although no such agreement is presented in the record before me, to the extent such a settlement exists, whether or not it prevents OPD from carrying out its statutory duties in conducting disciplinary proceedings against petitioner is a legal issue that needs to be raised during the course of the administrative hearing, and petitioner will need to exhaust his administrative remedies before being permitted to litigate this issue in a court of law (see id.; see also Matter of Neal, 46 A.D.3d at 159 [correction of litigation errors during administrative process must be left to the ordinary channels of appeal or review]).
To the extent petitioner contends that his appeal of the NYC OCME report's findings that his "extreme medical negligence" caused his patient's death serves as a barrier preventing OPD from pursuing disciplinary action against Robins, such argument is incorrect. As noted above, the issue before the Appellate Division is not the same as that being pursued by OPD - whether petitioner engaged in professional misconduct. Further, given that the administrative process is in its infancy stages, petitioner must first "exhaust available administrative remedies before being permitted to litigate in a court of law" (Matter of DiBlasio v Novello, 28 A.D.3d 339, 341 [1st Dept 2006]).
On the record before me, I find that there are no extraordinary circumstances that would warrant judicial intrusion into OPD's actions at this early stage - even if I had authority to do so, and if the proceeding had been commenced properly. Indeed, "there is no legally cognizable injury to be suffered solely from being subjected to the disciplinary hearing with the possibility of a subsequent finding of professional misconduct" (Galin v Chassin, 217 A.D.2d 446, 448 [1st Dept 1995]; see also Matter of DiBlasio, 28 A.D.3d at 342 [following professional misconduct hearing petitioner will be afforded the opportunity to seek administrative and judicial review]). Thus, I am "constrained not to interject [the court] into ongoing administrative proceedings until final resolution of those proceedings before the agency" (Galin, 217 A.D.2d at 448). As a consequence, petitioner's request for Article 78 relief, as well as his alternative demand for an injunction under CPLR 6301, 6311 and 42 USC 1983, and declaratory relief under CPLR 3101, are all without merit.
In his petition, Robins asserts that the rules requiring the exhaustion of administrative remedies should not apply to this proceeding because OPD seeks to usurp the Appellate Division's authority to determine the propriety of Dr. Prial's findings (Pet ¶¶ 239-246). As I have previously stated, there is nothing in the record before me that indicates that OPD - either through its investigation or professional conduct hearing - will seek to opine on the validity of Dr. Prial's findings contained in the NYC OCME report, nor are they required to do so (see Education Law § 6509). Thus, there is no evidentiary support for petitioner's argument, which requires that I presume the path that OPD will take, and then issue a writ of prohibition to stop it from doing so notwithstanding Robins' ability to raise objections at the administrative stage, and to challenge any legal errors via an Article 78 proceeding.
Accordingly, it is
ORDERED and ADJUDGED that respondent's motion to dismiss is hereby granted and the petition is dismissed in its entirety; and it is further
ORDERED and ADJUDGED that Exhibits 5A, 5 through 12, and Exhibit 14 annexed to the petition are hereby sealed for the reasons set forth herein, and the Clerk of Court shall ensure that such electronically filed documents are sealed accordingly.
This shall constitute the Decision, Order & Judgment of the Court. This Decision, Order & Judgment is being electronically filed on NYSCEF with copies being e-mailed to petitioners' and respondent's counsel. The signing of this Decision, Order & Judgment and e-filing with the County Clerk shall not constitute notice of entry under CPLR 5513, and the parties are not relieved from the applicable provisions of that Rule respecting to filing and service of Notice of Entry.
SO ORDERED.
Papers Considered:
1. Verified Petition for Relief Under CPLR 7803(2), CPLR 7803(3), Stay of Proceedings Under CPLR 7805, and in the Alternative Seeking Preliminary Injunction Pursuant to CPLR 6301 and 6311 Declaratory Judgment Pursuant to CPLR 3001 et. seq., and Permanent Injunction Pursuant to USC Sec. 1983, sworn to on April 18, 2022, with Exhibits 1-28 annexed thereto, along with Affirmation of Jacques G. Simon Esq., dated April 22, 2022, with Exhibits annexed thereto. 2. Notice of Respondents' Cross-Motion to Dismiss the Petition and Affirmation of Brian W. Matula, Esq. in Support of Respondents' Cross-Motion to Dismiss the Petition, dated August 19, 2022, with Exhibits annexed thereto, along with Memorandum of Law in Support of Respondents' Cross-Motion to Dismiss the Petition, dated August 19, 2022. 3. Petitioner's Affidavit in Opposition to Cross Motion to Dismiss, sworn to on September 1, 2022, with Exhibit annexed thereto and Affirmation in Opposition to Cross Motion to Dismiss of Jacques G. Simon, Esq., dated September 2, 2022, with Exhibits annexed thereto, along with Petitioner's Memorandum in Opposition to Respondents' Cross Motion to Dismiss the Verified Petition Pursuant to CPLR 3211(a)(8) and CPLR 3211(a)(7). 4. Reply Memorandum of Law in Further Support of Respondents' Cross-Motion to Dismiss the Petition, dated September 15, 2022.