
    In the Matter of John Doe, Respondent, v David Axelrod, as Commissioner of Health of the State of New York, Appellant.
    Argued February 10, 1988;
    decided March 24, 1988
    
      POINTS OF COUNSEL
    
      Robert Abrams, Attorney-General (Howard L. Zwickel, O. Peter Sherwood, Lawrence S. Kahn and Adina Kling of counsel), for appellant.
    I. Since respondent’s determination was nonfinal and remanded the matter to the Committee for completion of the disciplinary hearing, this article 78 proceeding is premature and should be dismissed. (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52; Matter of Martin v Ambach, 85 AD2d 869, 57 NY2d 1001; Matter of Golden v Planning Bd., 30 NY2d 359; Loretto v Teleprompter CATV Corp., 53 NY2d 124, 458 US 419; Matter of Patterson v Smith, 53 NY2d 98; Matter of Pfaff v Columbia-Green Community Coll., 99 AD2d 887; Matter of Rush v Mordue, 68 NY2d 348; Matter of State of New York v King, 36 NY2d 59; Matter of Wesser v State of New York, Dept. of Health, 94 AD2d 681, 60 NY2d 785; Matter of Whalen v Slocum, 84 AD2d 956.) II. The Commissioner has the authority to overrule a legal determination of his designated Administrative Officer and his exercise of that authority before the completion of the hearing was both proper and reasonable. (Matter of John P. v Whalen, 54 NY2d 89; Matter of Joseph Burstyn, Inc. v Wilson, 303 NY 242, 343 US 495; Matter of Gross v Ambach, 126 AD2d 1; Matter of Fahey v Public Health Council, 89 AD2d 702; Matter of Bruemmer v Vecchio, 93 AD2d 863; Matter of Henry v Wilson, 85 AD2d 885.) III. The Commissioner’s determination that confidential reports to the Board may not be disclosed when persons testify at medical misconduct hearings was a proper interpretation of Public Health Law § 230 (11) (a) and one which does not deny petitioner his right of cross-examination. (Matter of John P. v Whalen, 54 NY2d 89; Matter of Howard v Wyman, 28 NY2d 434; Matter of Grattan v People, 65 NY2d 243; People v Snyder, 129 Misc 2d 137; Matter of Murawski, 84 AD2d 496; Matter of Hecht v Monaghan, 307 NY 461; Matter of Simpson v Wolansky, 38 NY2d 391; Matter of Sowa v Looney, 23 NY2d 329; Matter of Greenbaum v Bingham, 201 NY 343.)
    
      Jerome R. Halperin and Guy S. Halperin for respondent.
    I. The Commissioner’s order exceeded his statutory powers in reversing evidentiary rulings of the Administrative Law Officer made during the course of the medical disciplinary hearings held pursuant to Public Health Law § 230 (10). (Matter of Whalen v John P., 72 AD2d 961.) II. Petitioner has the right to cross-examine witnesses concerning prior statements made by them to the Board and, if in writing, require them to be produced, a fundamental right guaranteed by the statute and the Constitution. (Matter of Hecht v Monaghan, 307 NY 461; People v Ramistella, 306 NY 379; People v Lustig, 206 NY 162; People v Becker, 210 NY 274; Alford v United States, 282 US 687; People v Cole, 43 NY 508; Matter of Murawski, 84 AD2d 496; People v Rosario, 9 NY2d 286, 368 US 866.) III. This article 78 proceeding is appropriate to challenge the ultra vires interlocutory order of the Commissioner who without statutory authority issued the order depriving petitioner of his constitutional and statutory rights to effectively confront and cross-examine witnesses. (Village of Herkimer v Axelrod, 88 AD2d 704, 58 NY2d 1069; Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52; Matter of Schumer v Holtzman, 60 NY2d 46; Matter of 303 W. 42nd St. Corp. v Klein, 46 NY2d 686; La Rocca v Lane, 37 NY2d 575, 424 US 968; Matter of Lee v County Ct., 27 NY2d 432; Matter of Culver Contr. Corp. v Humphrey, 268 NY 26.)
   OPINION OF THE COURT

Dillon, J.

Petitioner brought this article 78 proceeding in the nature of prohibition seeking to annul and vacate an order of the Commissioner of Health. The order reversed rulings of an Administrative Officer made at a disciplinary hearing before a Committee of the State Board for Professional Medical Conduct, and directed that the Committee reconvene and complete the hearing. The petition should be dismissed because the extraordinary remedy of prohibition is not available in the circumstances presented.

Petitioner is a licensed physician engaged in the practice of psychiatry. In April 1985, he was served with a notice of hearing and statement of charges by the State Board for Professional Medical Conduct (State Board). The misconduct charges were based on complaints of four female patients, each of whom alleged that she had been sexually abused by petitioner during the course of psychiatric treatment. The incidents of alleged abuse extended from 1970 through March 1980.

A hearing on the charges commenced before the Committee on Professional Conduct (Committee) on June 11, 1985 and continued on several dates thereafter. The four complainants appeared and testified, and on cross-examination each was asked whether she had previously made complaints against petitioner to the State Board. Petitioner’s stated purpose was to examine reports of such complaints, if any had been made. Counsel for the office of Professional Medical Conduct objected, citing the confidentiality provisions of Public Health Law § 230 (11) (a), and directed each complainant not to answer. On reconvening after an adjournment, the Administrative Officer (AO) overruled the objections, ordered the production of documentary evidence of any such prior complaints, and directed that each complainant appear for cross-examination on the subject. When counsel refused to comply, petitioner moved for dismissal of the charges. After further adjournment, the AO struck the complainants’ testimony and directed that it not be considered by the Committee in its deliberations. In its report to the Commissioner of Health (Commissioner), the Committee stated that because of the ruling of the AO, it could not render a final determination. It recommended that the "Commissioner take whatever legal steps are necessary to permit [it] to make a full determination on the merits of the charges”. The Commissioner reversed the rulings of the AO on the ground that Public Health Law § 230 (11) (a) mandates that complaints to the State Board remain confidential, and he remanded the matter to the Committee to complete the hearing.

Petitioner, contending that the Commissioner is powerless to reverse a ruling of an Administrative Officer, argues that this proceeding is appropriate because he challenges "an unconstitutional interlocutory order of the Commissioner of Health as ultra vires, beyond the scope of his authority”. Supreme Court disagreed, holding that the Commissioner is "not bound by the evidentiary rulings of his appointed administrative officer”, and dismissed the proceeding as premature (132 Mise 2d 980, 985). The Appellate Division, two Justices dissenting, reversed and granted the petition. That court found that because the Commissioner’s order impacted upon petitioner’s right of confrontation and could result in an unconstitutional deprivation of property without due process of law, the proceeding was properly brought as a "legitimate exception to the doctrine of exhaustion of administrative remedies” (123 AD2d, at 26). It also found that the Commissioner exceeded the scope of his statutory authority in reversing the AO’s evidentiary rulings. Leave to appeal to this court was granted by the Appellate Division, which certified the following question: "Was the order of this Court, which, inter alia, reversed the judgment (denominated an order) of the Supreme Court, properly made?” It was not, and there must be a reversal.

The general powers and duties of the Commissioner are enumerated in Public Health Law § 206, under which the Commissioner is directed to "take cognizance of the interests of health and life of the people of the state, and of all matters pertaining thereto and exercise the functions, powers and duties of the department [Department of Health of the State of New York] prescribed by law” (Public Health Law § 206 [1] [a]). That mandate encompasses the duty to investigate and prosecute professional misconduct involving the medical profession (see, Education Law § 6510-a [1]; Public Health Law § 230), and to that end the Commissioner is authorized to appoint the members of the State Board for Professional Medical Conduct (see, Public Health Law § 230 [1]) which, by committees of its members, has the power to conduct disciplinary hearings (Public Health Law § 230 [7]). In connection with such hearings, the Commissioner is required to designate an attorney to serve as an Administrative Officer, who has "the authority to rule on all motions, procedures and other legal objections and * * * to rule on objections to questions posed by either party or the committee members” (Public Health Law § 230 [10] [e]). On conclusion of a hearing, a committee is required to make and transmit to the Commissioner findings of fact, conclusions concerning the charges and, when appropriate, to recommend the penalty or sanction to be imposed (Public Health Law § 230 [10] [g], [h]). The Commissioner is empowered to make his own recommendation as to a committee’s findings, conclusions and recommendation, and is thereafter required to transfer the entire record of the proceeding to the Board of Regents for final decision and order (Public Health Law § 230 [10] [i]; see, Education Law § 6510-a [2]).

Petitioner argues that because the Commissioner is not specifically authorized by Public Health Law § 230 to reverse a ruling of an Administrative Officer, the power does not exist. We disagree. Whether a determination made by an Administrative Officer at a disciplinary hearing is final and binding upon the Commissioner depends upon the intent of the Legislature in conferring their respective powers (Matter of Joseph Burstyn, Inc. v Wilson, 303 NY 242, revd on other grounds 343 US 495). The position of Administrative Officer was created by legislation which was designed to reform the professional disciplinary process and improve its efficiency and effectiveness (Governor’s Mem, approving L 1980, ch 866, 1980 McKinney’s Session Laws of NY, at 1919). It would ill-serve that legislative purpose to attribute administrative finality to a ruling of an Administrative Officer, or even to require that corrective action await review by the Board of Regents or by the courts. Nothing in the legislation or its history suggests an intention that the limited authority given to an'Administrative Officer should work to impede the disciplinary process or inhibit the Commissioner and the Board of Regents from effectively and expeditiously resolving complaints of misconduct in the medical profession.

Here the matter properly came to the Commissioner in a manner consistent with the orderly review process established in Public Health Law § 230. In its report, the Committee made clear that the AO’s ruling had effectively prevented it from making a final determination, as the statute requires. The Committee sought the Commissioner’s intercession to the end that it be permitted to determine the merits of the charges against petitioner. Given the broad powers conferred upon the Commissioner in matters concerning the public health, and more particularly in regulating professional medical conduct, it would be anomalous if the Commissioner, under the unusual facts of this case, did not have the power to make his independent determination of the issues. In our view, the power to do so is "essential to the exercise” of the far-reaching powers expressly granted to the Commissioner by the Legislature (Lawrence Constr. Corp. v State of New York, 293 NY 634, 639).

Having thus concluded that the Commissioner did not exceed his powers in reversing the ruling of the AO, we briefly address other issues presented on this appeal. While petitioner urges that the Commissioner’s determination gives rise to an issue of constitutional dimension, and the Appellate Division agreed, it does not follow, as that court found, that this proceeding is properly brought as a legitimate exception to the doctrine of exhaustion of administrative remedies (see, Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57). Clearly, petitioner seeks judgment in the nature of prohibition (see, CPLR 7803 [2]). That extraordinary remedy is available only where there is a clear legal right, and only when an officer acts without jurisdiction or in excess of powers in a proceeding over which there is jurisdiction "in such a manner as to implicate the legality of the entire proceeding” (Matter of Rush v Mordue, 68 NY2d 348, 353). Petitioner’s challenge is directed only to the alleged evidentiary error committed within the proceeding. The 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 (see, Matter of Steingut v Gold, 42 NY2d 311, 315), "and however cleverly the error may be characterized by counsel as an excess of jurisdiction or power” (Matter of Rush v Mordue, supra, at 353). Consequently, relief in the nature of prohibition is not available to petitioner. He has "an adequate remedy in his right to institute an article 78 proceeding following a final agency determination” (Matter of Rainka v Whalen, 73 AD2d 731, 732, affd for reasons stated at App Div 51 NY2d 973).

Accordingly, the order of the Appellate Division should be reversed, with costs, the petition dismissed, and the certified question answered in the negative.

Simons, J.

(concurring). I would dismiss the proceeding without addressing the merits.

It is well settled that "one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law (e.g., Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371, 375)” (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57). While the rule is not without exceptions (id., at 57), none is applicable here.

Petitioner contends that prohibition is available because the Commissioner exceeded his powers in reversing the evidentiary ruling of the Administrative Officer and remitting the matter to complete the administrative hearing. However, any abuse of power by the Commissioner, if such there was, affects only the permissible scope of petitioner’s cross-examination of complainants; it does not in any way implicate the legality of the hearing or vitiate the proceedings. Petitioner has an adequate remedy for such errors by way of direct review of any discipline that ultimately may be imposed by the Board of Regents and suffers no legally cognizable injury by merely being subjected to the disciplinary hearing with the possibility of a subsequent finding of professional misconduct (Matter of Rush v Mordue, 68 NY2d 348, 354-355). Accordingly, there is no need to address the merits of petitioner’s claim by engaging in an analysis of the Commissioner’s powers (Matter of Rush v Mordue, supra).

Chief Judge Wachtler and Judgés Kaye, Alexander, Hancock, Jr., and Bellacosa concur with Judge Dillon; Judge Simons concurs in result in a separate opinion.

Order reversed, etc. 
      
       Designated pursuant to NY Constitution, article VI, § 2.
     