3 No. 118 SSM 9
In the Matter of Muhammad Azam Khan,
Respondent,
v.
New York State Department of Health, et al.,
Appellants.
_________________________________________________________________
2001 NY Int. 87
July 2, 2001
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Submitted by Robert H. Easton, for appellants.
Submitted by Katherine Herr Solomon, for respondent.
_________________________________________________________________
_________________________________________________________________
MEMORANDUM:
The order of the Appellate Division, insofar as appealed from, should
be reversed, with costs, and the matter remitted to that court for
review of the sanction imposed and any other issues not considered in
view of the disposition of that court.
The Appellate Division annulled appellant New York State Department of
Health's determination that petitioner's conduct violated Education
Law §§ 6530(18) and (29) by reaching an unpreserved issue "in the
interest of justice." This was error. Judicial review of
administrative determinations pursuant to article 78 is limited to
questions of law (see, Matter of Featherstone, , 95 NY2d 550, 554;
CPLR 7803 ). Unpreserved issues are not issues of law. Accordingly,
the Appellate Division had no discretionary authority or interest of
justice jurisdiction in reviewing the agency's determination of guilt
below (see, Matter of Kelly v Safir, , 96 NY2d 32, 38, rearg denied
__NY2d__).
On review of submissions pursuant to section 500.4 of the Rules,
order, insofar as appealed from, reversed, with costs, and matter
remitted to the Appellate Division, Third Department, for further
proceedings in accordance with the memorandum herein. Chief Judge Kaye
and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo
concur.
SNIPPETS:
This memorandum is uncorrected and subject to revision before publication in the New York
for respondent.
The order of the Appellate Division, insofar as appealed from, should be reversed, with
The Appellate Division annulled appellant New York State Department of Health's determination
Judicial review of administrative determinations pursuant to article 78 is limited to
Accordingly, the Appellate Division had no discretionary authority or interest of justice
On review of submissions pursuant to section 500.4 of the Rules, order, insofar as appealed
Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.
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