                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 23, 2014                   518137
________________________________

In the Matter of AMGAD
   HESSEIN,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

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


Calendar Date:   September 9, 2014

Before:   Lahtinen, J.P., Rose, Egan Jr., Lynch and Clark, JJ.

                             __________


      Law Office of Edward R. Hopkins, Garden City (Edward R.
Hopkins of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Zainab A.
Chaudhry of counsel), for respondents.

                             __________


Clark, J.

      Appeal from a judgment of the Supreme Court (McDonough,
J.), entered July 18, 2013 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to, among other things, review a determination of
respondent Commissioner of Health which temporarily suspended
petitioner from the practice of medicine in New York.

      Petitioner is a board-certified anesthesiologist who
operated a pain management practice with offices in New York and
New Jersey. In August 2011, petitioner was indicted in New
Jersey on 74 counts alleging health care claims fraud and
conspiracy to commit health care fraud. Subsequently, after a
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lengthy hearing, the New Jersey State Board of Medical Examiners
(hereinafter the NJ Board) temporarily suspended petitioner's New
Jersey medical license pending the outcome of the disciplinary
proceeding concerning the alleged fraudulent billing practices.
Based on the actions of the NJ Board, the New York Office of
Professional Medical Conduct (hereinafter OPMC) initiated an
investigation of petitioner's medical practice, the results of
which were presented to an OPMC investigation committee. Upon
the recommendation of the committee, respondent Commissioner of
Health (hereinafter the Commissioner) executed a summary order
temporarily suspending petitioner from practicing medicine in New
York pending final conclusion of the New Jersey disciplinary
proceeding. In August 2012, however, that proceeding was placed
on an inactive list pending developments in the criminal matter,
where it remains.

      Petitioner thereafter commenced the instant proceeding
pursuant to CPLR article 78, seeking to vacate the Commissioner's
summary order, or, in the alternative, for an order directing
respondents to schedule a hearing and allow petitioner to
practice medicine in New York while the hearing is pending.
Supreme Court dismissed petitioner's application and petitioner
now appeals arguing, among other things, that the court erred in
holding that the Commissioner's determination to summarily
suspend his right to practice medicine in New York was not
arbitrary and capricious or an abuse of discretion.

      Initially, we agree with petitioner that Supreme Court
erred in declining to consider the allegation that he was denied
the opportunity to be interviewed by OPMC inasmuch as this
allegation was asserted for the first time in petitioner's reply
papers. To the extent that respondents' answering papers
contained the claim that petitioner had declined an interview,
this allegation constituted a "new matter" to which petitioner
had a right to reply (see CPLR 402, 7804 [d], [e]; compare Matter
of E.W. Tompkins Co., Inc. v State Univ. of N.Y., 61 AD3d 1248,
1252 [2009], lv denied 13 NY3d 701 [2009]). However, we
nonetheless affirm Supreme Court's finding that petitioner was
properly afforded "an opportunity to be interviewed by [OPMC] in
order to provide an explanation of the issues under
investigation" (Public Health Law § 230 [10] [a] [iii]).
                              -3-                518137

      Here, Susan Gravell – the OPMC nurse investigator – sent
petitioner a letter dated February 9, 2012 by certified mail,
with a copy faxed to the attorney representing him in the New
Jersey matter, Susan Fruchtman. This letter explained that OPMC
had commenced an investigation of petitioner based on his
suspension in New Jersey and specifically advised him of his
opportunity for an interview. The letter directed petitioner to
contact Gravell by February 29, 2012 to either schedule or
decline the interview and warned that "[f]ailure to contact
[OPMC] to schedule an interview . . . will be considered a
declination of [his] opportunity for an interview." On February
29, 2012, Fruchtman responded to Gravell, providing information
about the status of the New Jersey matter and asking that no
action be taken against petitioner's New York license. Fruchtman
did not mention the interview in her correspondence, nor did she
indicate that her representation of petitioner was limited solely
to the New Jersey matter. Although Fruchtman and Gravell
continued to exchange correspondence and information for a period
of time, a request to schedule an interview was not made.

      Despite petitioner's denial of having personally received
Gravell's letter, we find support in the record for the
determination that petitioner was afforded his
statutorily-mandated opportunity to have an interview.
Specifically, petitioner admitted to being aware of the letter
via Fruchtman and, by way of Fruchtman's correspondence with
Gravell, provided documents – including the reports of
petitioner's expert – to OPMC explaining the nature of his
alleged conduct. Under these circumstances, we determine that,
after being afforded adequate notice, petitioner declined his
opportunity to be interviewed by OPMC.

      We do not agree that the Commissioner's determination to
temporarily suspend petitioner's ability to practice medicine in
New York was arbitrary or capricious or an abuse of discretion.
Here, the summary order was based on the express language of
Public Health Law § 230 (12) (b) – which explicitly authorizes
the Commissioner to rely on the determination of the NJ Board –
and the findings of the NJ Board that the practice of medicine by
petitioner constitutes "an imminent danger to the health of its
people." While petitioner claims numerous errors and
                              -4-                518137

inadequacies with the New Jersey proceeding, these contentions
have no bearing on the Commissioner's explicit statutory
authority (see Public Health Law § 230 [12] [b]) and, as such,
were not issues within Supreme Court's scope of review (see
Matter of D'Ambrosio v Dept. of Health of State of N.Y., 4 NY3d
133, 141 [2005]; Matter of Lakner v New York State Dept. of
Health, 72 AD3d 1225, 1226-1227 [2010], lv denied 15 NY3d 704
[2010]; Matter of Bursztyn v Novello, 42 AD3d 596, 597-598
[2007]).

      Finally, we disagree with petitioner's contention that he
has been deprived of due process based on the potentially
indefinite time frame for the final conclusion of the New Jersey
disciplinary matter. Specifically, the applicable statute
dictates that petitioner's "summary suspension shall remain in
effect until the final conclusion of a hearing which shall
commence . . . within thirty days after the disciplinary
proceedings in [New Jersey] are finally concluded" (Public Health
Law § 230 [12] [b]). While it may be that our Legislature did
not contemplate circumstances such as these when drafting the
aforementioned mandates, the Commissioner is nonetheless bound by
this statute and all of its terms, including those that dictate
when the New York hearing may properly be held. Notably, after
being afforded a full hearing in New Jersey, petitioner was not
without pre-deprivation process in New York – i.e., the
opportunity to participate in an interview before OPMC as well as
provide information and documentation. Petitioner's remaining
arguments have been considered and found to be without merit.

     Lahtinen, J.P., Rose, Egan Jr. and Lynch, JJ., concur.
                        -5-                  518137

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
