                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 16, 2015                    519388
________________________________

In the Matter of SARAH FULLER
   et al.,
                    Appellants,
      v                                     MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT
   OF HEALTH et al.,
                    Respondents.
________________________________


Calendar Date:   February 18, 2015

Before:   Peters, P.J., Lahtinen, Garry and Lynch, JJ.

                             __________


      Sussman and Watkins, Goshen (Michael H. Sussman of
counsel), for appellants.

      Eric T. Schneiderman, Attorney General, Albany (Jonathan D.
Hitsous of counsel), for New York State Department of Health,
respondent.

      Iseman, Cunningham, Riester & Hyde, LLP, Albany (Brian M.
Culnan of counsel), for Bon Secours Health Systems, respondent.

                             __________


Lahtinen, J.

      Appeal from an order and judgment of the Supreme Court
(Platkin, J.), entered November 7, 2013 in Albany County, which,
among other things, dismissed petitioners' application, in a
proceeding pursuant to CPLR article 78, to, among other things,
review a determination of respondent Department of Health
authorizing Bon Secours Community Hospital to discontinue the
provision of maternity services.
                              -2-                519388

      Respondent Bon Secours [Charity] Health Systems, on behalf
of one of its hospitals – Bon Secours Community Hospital, located
in the City of Port Jervis, Orange County – filed an application
in October 2011 with respondent Department of Health to decertify
its obstetrics services. The Hospital cited, among other
reasons, a significant decline in deliveries over recent years
and the proximity within less than 25 miles of a medical center
with a level 2 neonatal intensive care unit and a hospital with a
level 1 perinatal center. Community members and governmental
officials who were opposed to the plan had meetings with Hospital
administrators and Department officials. Ultimately, in December
2012, the Department approved the decertification application
subject to certain conditions aimed at addressing some concerns
expressed about decertification, particularly as involved
potential burdens for indigent patients and ensuring that
services for emergency birth situations were maintained.
Petitioners, who live near the Hospital and were pregnant at the
time that the Department approved decertification, commenced this
proceeding contending that the Department's determination was
arbitrary, capricious and contrary to law. Supreme Court
dismissed the petition and this appeal ensued.

      "Where, as here, . . . petitioner[s] challege[] an
administrative determination made where a hearing is not
required, appellate review is limited to whether the
determination lacks a rational basis and is, thus, arbitrary and
capricious" (Matter of Bais Sarah Sch. for Girls v New York State
Educ. Dept., 99 AD3d 1148, 1150 [2012], lv denied 20 NY3d 857
[2013] [internal quotation marks and citations omitted]). "An
action is arbitrary and capricious when it is taken without sound
basis in reason or regard to the facts" (Matter of Peckham v
Calogero, 12 NY3d 424, 431 [2009] [citation omitted]). "If the
[agency's] determination has a rational basis, it will be
sustained, even if a different result would not be unreasonable"
(Matter of Ward v City of Long Beach, 20 NY3d 1042, 1043 [2013]
[citation omitted]). We "may not substitute [our] judgment for
that of the agency responsible for making the determination," and
"[d]eference to the judgment of the agency, when supported by the
record, is particularly appropriate when the matter under review
involves a factual evaluation in the area of the agency's
expertise" (Matter of Warder v Board of Regents of Univ. of State
                              -3-                  519388

of N.Y., 53 NY2d 186, 194 [1981], cert denied 454 US 1125 [1981];
see Matter of Peckham v Calogero, 12 NY3d at 431).

      The record contains a rational basis for the Department's
determination. In the years before the decertification
application, deliveries had declined and reached a level where
there was concern about keeping ample staffing and the ability to
maintain a high level of care. The Hospital had been providing
around the clock obstetrical care, but had a maternity ward
occupancy of less than 20% at the time of its application. Other
hospitals were located within a reasonable proximity and many
potential patients were already using those facilities for
childbirth. Plans were put in place by the Hospital to provide
transportation to the other facilities for those without means
for such travel and to keep space at the Hospital for emergency
births, as well as provide obstetrics training to the Hospital's
emergency department staff. Although petitioners submitted proof
challenging aspects of the Department's findings and a different
result could have been reasonably reached, the Department's
determination has a sound basis in reason and is supported by the
record.

      The other grounds urged by respondents for affirming –
i.e., mootness and standing – are academic.

     Peters, P.J., Garry and Lynch, JJ., concur.


      ORDERED that the order and judgment is affirmed, without
costs.



                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
