December 06, 2010

Challenging a disciplinary penalty

Challenging a disciplinary penalty
Mantione v Levin, 277 AD2d 952

Ever wonder why some disciplinary action appeals are transferred to the Appellate Division by a State Supreme Court Judge? The Mantione decision sets out guidelines followed by the Appellate Division courts in determining whether a petition seeking to vacate or modify the penalty imposed in a disciplinary proceeding should be transferred to it.

Essentially, cases filed in Supreme Court that turn on whether or not the determination of guilt is supported by substantial evidence are to be transferred to the Appellate Division.

Salvatore S. Mantione was disciplined by the Commissioner of Insurance. Mantione admitted that he committed the acts alleged in the charges. Although neither party raised the issue whether the determination of guilt is supported by substantial evidence, a State Supreme Court judge decided that it was necessary to independently analyze the case to decide whether the substantial evidence test is properly applicable.

As any issue concerning substantial evidence is to be determined by an Appellate Division tribunal, the Supreme Court Judge sua sponte [on its own motion] determined that transfer was mandated by Civil Practice Law and Rules Sections 7803(4) and 7804(g) and sent it to the Fourth Department.

The Fourth Department said that the lower court was incorrect as a matter of law in finding an issue of substantial evidence and that the proceeding should not have been transferred.

It vacated the order transferring the action and returned the case to Supreme Court to review the penalty imposed. In other words, questions involving whether or not an administrative determination is supported by substantial evidence are to be resolved by the Appellate Division.

In contrast, questions concerning the reasonableness of the penalty imposed by an administrative tribunal after it finds a party guilty are to be initially considered by a State Supreme Court Judge.

As then State Supreme Court Judge Walter J. Relihan, Jr. stated in Eckstrom v City of Ithaca, [not officially reported], since the issue before him was not whether the administrative decision was supported by substantial evidence but rather whether the resolution violated Eckstrom’s rights as a matter of law, it should not be transferred to the Appellate Division.

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