                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 23, 2015                     519018
________________________________

In the Matter of RAYMOND
   TARTAKOFF,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

NEW YORK STATE EDUCATION
   DEPARTMENT et al.,
                    Respondents.
________________________________


Calendar Date:   May 27, 2015

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

                             __________


      Wilson Elser, Albany (Benjamin F. Neidl of counsel), for
petitioner.

      Eric T. Schneiderman, Attorney General, New York City
(Rachel J. Pasternak of counsel), for respondents.

                             __________


Lahtinen, J.

      Proceeding pursuant to CPLR article 78 (initiated in this
Court pursuant to Education Law § 6510 [5]) to review a
determination of the Board of Regents which, among other things,
suspended petitioner's license to practice as a licensed clinical
social worker in New York for two years.

      The Office of Professional Discipline of respondent New
York State Education Department (hereinafter OPD) investigated
petitioner, a licensed clinical social worker, after receiving a
complaint from one of his clients, JC. He was eventually charged
with three specifications of professional misconduct, namely,
negligence on more than one occasion, incompetence on more than
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one occasion and unprofessional conduct. The charges were
premised upon allegations that, while treating JC between October
2004 and June 2008, petitioner had, among other things, actively
socialized with both JC's then husband, DC (who was also
petitioner's client), as well as JC's father, and that he further
failed to maintain accurate records. Following a hearing, the
Hearing Panel of the State Board for Social Work found petitioner
guilty of the three specifications and recommended that his
license be revoked. The Regents Review Committee accepted the
Hearing Panel's findings of fact and determination of guilt, but
modified the penalty to, among other things, suspend his license
for five years, with the last three years of the suspension
stayed and five concurrent years of probation. The Board of
Regents accepted the Regents Review Committee's recommendation
and penalty. Petitioner commenced this CPLR article 78
proceeding challenging the Board's determination.

      Petitioner argues that certain treatment records of JC and
DC's couples therapy were improperly admitted into evidence at
the hearing in violation of the social worker privilege (see CPLR
4508) since DC had not consented. Although administrative
agencies are not bound by strict rules of evidence (see e.g.
Matter of Tsirelman v Daines, 61 AD3d 1128, 1130 [2009], lv
denied 13 NY3d 709 [2009]), they are required to "give effect to
the rules of privilege recognized by law" (State Administrative
Procedure Act § 306 [1]). Here, petitioner had already released
the relevant records to OPD during its investigation. His
objection prior to the hearing appears directed at whether JC had
waived the privilege. Petitioner called DC as a witness and DC
freely answered questions regarding the treatment covered by the
records. DC did not assert the privilege. The privilege is
intended to protect the client (cf. People v Osorio, 75 NY2d 80,
84 [1989] [discussing the attorney-client privilege]) and, under
the circumstances, we are unpersuaded that receipt of the records
deprived petitioner of a fair hearing.

      Petitioner further contends that he did not receive a fair
hearing because his chosen counsel was disqualified. We cannot
agree. Petitioner retained Michael Sussman, who was already
representing JC in a separate civil rights action against her
employer in federal court. OPD moved to disqualify Sussman from
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representing petitioner. "When the representation is
simultaneous, the burden shifts to the attorney to demonstrate
that no actual or apparent conflict in loyalties exists"
(Leonardo v Leonardo, 297 AD2d 416, 418 [2002] [citation
omitted]). "[D]oubts as to the existence of a conflict of
interest must be resolved in favor of disqualification" (Sperr v
Gordon L. Seaman, Inc., 284 AD2d 449, 450 [2001] [internal
quotation marks and citation omitted]; see Halberstam v
Halberstam, 122 AD3d 679, 679 [2014]). To represent petitioner,
Sussman would have had to effectively cross-examine JC, who was a
key witness in OPD's case against petitioner. His simultaneous
representation of her in a pending federal action potentially
gave him access to information not otherwise available for use on
cross-examination. Moreover, in this proceeding, Sussman would
be attempting to diminish her credibility, whereas an opposite
result would be pursued in the federal action. There was a
sufficient conflict of interest to justify disqualifying Sussman.

      We consider next petitioner's challenge to the merits of
the Board's determination. The Board's determination will not be
disturbed if it is supported by substantial evidence (see Matter
of D'Angelo v State Bd. for Professional Med. Conduct, 66 AD3d
1154, 1155 [2009]; Matter of Ho v Novello, 27 AD3d 908, 910
[2006]). OPD's expert, David Olsen, testified in detail
regarding boundaries that a social worker must maintain, the
training social workers receive about boundaries, and the reasons
for the boundaries, which include protecting client
confidentiality and making the client feel safe. He opined that
petitioner had many boundary violations and that his actions
deviated from the acceptable practices within the profession.
Among other things, petitioner had, during the relevant time and
while JC was a client, played golf with DC and JC's father and
had eaten meals with JC and DC at their home. Petitioner
attempted to explain his presence at JC's home as consistent with
a counseling theory advanced by Salvator Minuchin advocating
sessions in a client's home as facilitating the therapeutic
process. However, petitioner acknowledged that there was no
documentation in his notes that he was using Minuchin's
techniques in counseling JC and DC. Olsen also testified
regarding the many deficiencies in petitioner's records
including, but not limited to, the lack of progress notes
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supporting his various diagnoses and the absence of any treatment
plan. Substantial evidence supports the Board's determination.

      "The penalty in a disciplinary proceeding governed by the
Education Law rests within the discretion of the reviewing agency
and will not be disturbed unless it is so disproportionate to the
offense as to shock one's sense of fairness" (Matter of Genco v
Mills, 28 AD3d 966, 967 [2006] [citations omitted]; see Matter of
Yohanan v King, 113 AD3d 971, 972 [2014], appeal dismissed 23
NY3d 953 [2014], lv denied 24 NY3d 902 [2014]). The penalty did
not run afoul of such standard, and it was not error to consider
as a factor in the penalty a consent order in another
disciplinary matter involving petitioner.

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



      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
