New York State Court of Claims

New York State Court of Claims

WAHBA v. THE STATE OF NEW YORK, #2001-001-044, Claim No. 103915, Motion No. M-63388


Synopsis


Precluded by the doctrine of res judicata, the Court grants the State's motion to dismiss.

Case Information

UID:
2001-001-044
Claimant(s):
ATIF N. WAHBA, M.D.
Claimant short name:
WAHBA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103915
Motion number(s):
M-63388
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Atif N. Wahba, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Kathleen M. Resnick, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
August 3, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on defendant's motion to dismiss the claim pursuant to CPLR 3211 (5) and (7): Notice of Motion to Dismiss, dated April 16 and filed April, 18, 2001; Affirmation in Support of Defendant's Motion to Dismiss of Kathleen M. Resnick, Esq., AAG, dated April 16 and filed April 18, 2001, with annexed Exhibits A-D; Affidavit of Atif N. Wahba, sworn to June 7 and filed June 8, 2001, with annexed Exhibit A; Answering Affirmation of Nira T. Kermisch, Esq., dated and received June 8, 2001; the claim, dated and filed March 5, 2001.

Claimant Atif N. Wahba ("claimant") was a doctor specializing in obstetrics and gynecology when he was charged with 15 specifications of professional misconduct by the Board of Professional Medical Conduct in March 1999 (claim, dated and filed March 5, 2001 ["claim"], ¶¶ 1-13). Pursuant to Public Health Law § 230 (12) (a), the Executive Deputy Commissioner ("the Deputy Commissioner") of the New York State Department of Health ("the Department") summarily suspended claimant's practice of medicine pending a hearing on the charges by the Committee on Professional Conduct ("the Committee") (see, Public Health Law § 230 [10] [e-h]). The Committee sustained several of the allegations with respect to five patients and suspended claimant's license to practice, but stayed the suspension and placed claimant on probation (essentially monitoring of his practice) for two years (Affirmation in Support of Defendant's Motion to Dismiss of Kathleen M. Resnick, Esq., AAG, dated April 16 and filed April 18, 2001, with annexed Exhibits A-D ["Resnick Aff."], ¶¶ 3, 4, Exh. A [Determination and Order of the Committee]).[1]

Both the Department and claimant then sought review by the Administrative Review Board for Professional Medical Misconduct ("the ARB") pursuant to Public Health Law § 230 (10) (i) (claim, ¶ 15). Noting that the Committee had erred by considering claimant's busy practice and a patient's delay in getting to a hospital as mitigating factors, the ARB found that claimant was not an acceptable candidate for retraining and that his continued practice would place the public at risk (Resnick Aff., Exh. B [Determination and Order of the ARB]); and accordingly permanently revoked claimant's license to practice medicine (id., at 8-9).

Claimant thereafter sought judicial review of this decision by way of a CPLR article 78 proceeding before the Appellate Division, Third Department, which confirmed the ARB's determination and dismissed his petition (see, Matter of Wahba v New York State Dept. of Health, 277 AD2d 634, supra).

Claimant then filed this claim alleging "upon information and belief" that the summary suspension of his license by the Deputy Commissioner and the ARB's subsequent revocation of his license was based upon his race and national origin (Egyptian) and his education at a medical school outside the United States (claim, ¶¶ 8, 15). Claimant avers that defendant State of New York ("defendant" or "the State") "[u]pon information and belief . . . has a long-standing policy of bringing charges against physicians of foreign origin more often than non-foreign doctors, for the same or similar incidents, and penalizes more severely doctors of foreign origins than it does non-foreign doctors" (claim ¶ 16). As a result of this alleged discriminatory revocation of his medical license, claimant states that he has been damaged in the amount of $300,000 a year (claim, ¶ 21).

In lieu of an answer, defendant brought this pre-answer motion to dismiss pursuant to CPLR 3211, arguing, among other things, that the doctrine of res judicata precludes claimant from attacking the revocation of his license in this court under the guise of a discrimination claim (Resnick Aff., ¶¶ 10-12; Exh. D [Horne v New York State Dept. of Health (Sup Ct, Albany County, July 7, 2000, Malone Jr., J.)]). The State also argues that the members of the Board of Professional Medical Conduct, including the ARB members, are immune from suit pursuant to Public Health Law § 230 (8).

Claimant opposes the motion, arguing that the doctrine of res judicata has no application in this claim because the issue of discrimination was not raised at the Appellate Division and could not have been raised during the CPLR article 78 proceeding (Answering Affirmation of Nira T. Kermisch, Esq., dated and received June 8, 2001 ["Kermisch Aff."], ¶¶ 16-23; Affidavit of Atif N. Wahba, sworn to June 7 and filed June 8, 2001, with annexed Exhibit A ["Wahba Aff."], ¶¶ 15-16). Claimant further contends that the Board of Professional Medical Conduct does not enjoy quasi-judicial immunity from prosecution because the statute (Public Health Law 230 [8]) conditions immunity on acts taken without malice, and the alleged discrimination constitutes malice (Kermisch Aff., ¶¶ 39-47).

Under New York's "transactional" approach to the doctrine of res judicata, or more precisely, claim preclusion, "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" (O'Brien v City of Syracuse, 54 NY2d 353, 357). In determining whether the claims arise out of the same transaction, the Court will see "a claim or cause of action as ‘coterminous with the transaction regardless of the number of substantive theories or variant forms of relief . . . available' " (Smith v Russell Sage College, 54 NY2d 185, 192, quoting Restatement, Judgments 2d [Tent Draft No. 4, 1978], § 61, Comment a). Under this approach, res judicata preclusion may be warranted even though the new claim is premised upon different factual averments as long as the two claims share the same underlying "gravamen of the wrong upon which the [former] action was brought" (id., at 192).

In contrast to the narrower doctrine of collateral estoppel or issue preclusion, res judicata will bar not only claims or issues that were actually litigated but also those that could have been litigated (see, Parker v Blauvelt Volunteer Fire Co., Inc., 93 NY2d 343, 347; Siegel, NY Prac § 464, at 745 [3d ed]). "Thus, where a [claimant] in a later action brings a claim for damages that could have been presented in a prior CPLR article 78 proceeding against the same party, based upon the same harm and arising out of the same or related facts, the claim is barred by res judicata" (id., at 348, citing Pauk v Board of Trustees of City University of New York, 111 AD2d 17, 20-21, affd 68 NY2d 702).

Here, claimant argues that res judicata cannot bar his claim because the issue of discrimination was not raised and, in fact, could not have been raised in the CPLR article 78 proceeding (Kermisch Aff., ¶¶ 16-23; Wahba Aff., ¶¶ 15-16). While res judicata will not bar a claim that could not have been raised in a prior proceeding due to the existence of a "formal barrier" (see, Restatement [Second] of Judgments § 26 [1] [c] and comment), no "formal barrier" prevented claimant from alleging in his CPLR article 78 proceeding that the penalty imposed by the ARB was prompted by discrimination.

When reviewing a determination of the ARB the Appellate Division decides "whether the ARB's determination was made in violation of lawful procedure, was affected by an error of law, was arbitrary and capricious or an abuse of discretion" (Matter of Minielly v Commissioner of Health of State of N.Y., 222 AD2d 750, 751; see, CPLR 7803 [3]). Under this standard of review the essential inquiry is "whether the administrative decision has a rational basis supported by fact" (Matter of Chau v Chassin, 215 AD2d 953, 954-955, lv denied 86 NY2d 708).

Within the confines of this analysis, claimant could have challenged the ARB's determination based on its alleged bias (see, e.g., Warder v Board of Regents of University of State of N.Y., 53 NY2d 186, 197, cert denied 454 US 1125; Matter of Miller v Commissioner of Health for the State of N.Y., 270 AD2d 584, 585; Brigham v DeBouno, 228 AD2d 870, 874, lv denied 89 NY2d 801; see also, 10 NYCRR 51.17 [rule regarding disqualification for bias in hearings governed by Public Health Law § 230]). Claimant also could have challenged the determination as arbitrary and capricious by alleging that it was not based upon a "dispassionate review of facts" (Warder v Board of Regents of Univ. of State of N.Y., supra, at 197), but rather was prompted by discrimination (see, e.g., Matter of Chace v DeBuono, 223 AD2d 961; see also, Matter of Moran v Chassin, 225 AD2d 814, 815-816, lv denied 88 NY2d 807; Harrison v Department of Correction of City of New York, 1995 WL 230411, at *2-3 [S.D.N.Y.] [plaintiff's Federal Title VII claim dismissed under doctrine of res judicata when he had opportunity to raise allegation of discrimination in prior CPLR article 78 hearing but failed to do so]).

In fact, the CPLR article 78 proceeding was precisely the forum in which claimant should have advanced his allegations that the Deputy Commissioner's summary suspension[2] and the ARB's revocation of his license constituted discriminatory enforcement of the Public Health Law based on his race and national origin (see, Matter of Cannon v Urlacher, 155 AD2d 906 [holding claim of discriminatory enforcement of a disciplinary scheme by a licensing authority cannot be raised at an administrative hearing but must be submitted in a CPLR article 78 proceeding]; Matter of Bell v New York State Liquor Authority, 48 AD2d 83 [proper manner in which to raise discriminatory selective enforcement as a defense is to raise it initially in the CPLR article 78 proceeding subsequent to the administrative hearing]; see also, Matter of Feigman v Klepak, 62 AD2d 816).

In summary, claimant had ample opportunity to allege discrimination during his CPLR article 78 review, and this Court could not entertain such allegations now without destroying or impairing rights or interests established by the prior proceeding (see, Schuylkill Fuel Corp. v B. & C. Nieberg Realty Corp., 250 NY 304, 308). Accordingly, the Court finds claim No. 103915 to be precluded by the doctrine of res judicata, and grants the State's motion to dismiss.


August 3, 2001
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]The sustained charges concerning the five patients are detailed in Matter of Wahba v New York State Dept. of Health (277 AD2d 634).
[2]Claimant could have commenced a CPLR article 78 hearing to challenge the summary suspension of his practice by the Deputy Commissioner (see, Matter of John P. v Axelrod, 106 AD2d 908, affd 65 NY2d 863; Matter of Wootan v Axelrod, 111 Misc 2d 688, affd 87 AD2d 913).