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January 04, 2012

Exhausting one's administrative remedy

Exhausting one's administrative remedy
Sabino v DiNapoli, 2011 NY Slip Op 09244, Appellate Division, Third Department

Anthony J. Sabino, an attorney, provided legal services to a number of political subdivisions of the State including serving with the Town of Oyster Bay, and Bethpage Water District. Both Oyster Bay and Bethpage had reported Sabino as an employee to the New York State Employees’ Retirement System [ERS].

In 2008, Comptroller promulgated regulations to provide guidance to the ERS as to whether individuals providing professional services such as those provided by Sabino should be deemed employees or as independent contractors. Significantly, independent contractors were not eligible for member service credit for the services provided to a public employer as an independent contractor.

After reviewing Sabino's status with the Water District, ERS determined that Sabino was an independent contractor and revoked a portion of his service credits in the Retirement System. Sabino was advised he was entitled to an administrative hearing if he wished to contest ERS' determination revoking such member service credit with the System.

In addition to requesting such a hearing,  Sabino filed a petition pursuant to CPLR Article 78 seeking a court order annulling ERS’ determination. Sabio contended that ERS had violated his rights under Article V, § 7 of the New York State Constitution and the 14th Amendment to the US Constitution by retroactively applying new standards and factors that were not in effect at the time he became a member of the Retirement System.

ERS moved to dismiss Sabino’s petition contending that he had failed to exhaust his administrative remedies. Supreme Court granted ERS’ motion, rejecting Sabino’s argument that “he was excused from the exhaustion requirement” because he had raised constitutional issues and that pursuing the available administrative remedy would be futile because he could not factually dispute the factors enumerated in support of ERS' determination. Sabino appealed the Supreme Court’s ruling.

Affirming the lower court’s decision, the Appellate Division said that “It is well settled that a party seeking to challenge the action of an administrative agency must first exhaust available administrative remedies.” 

Noting that in some instances a party may be excused from comply with the exhaustion requirement, such as when “a party asserts a constitutional challenge to an agency's action” or "when resort to an administrative remedy would be futile," the Appellate Division said that merely asserting that a constitutional right is involved will not excuse an individual's failure to pursue established administrative procedures that can provide adequate relief.

In this instance, said the court, there was a factual issue as to whether the regulation represents a meaningful and substantial change in ERS’ policy or was it merely the codification of existing policy. Such a determination, explained the Appellate Division, involves interpretation of the Retirement System's own regulations and should be left, in the first instance, to the administrative agency "so that a clearer formulation of and the rationales for agency policy may be fully aired."

As there was nothing in the record "which clearly indicates that [ERS has] predetermined the issue . . . or [has] construed the relevant regulation in a way that would dictate an adverse result of an administrative hearing,” the court concluded that Sabino has “failed to make the requisite showing that pursuit of administrative remedies would be futile" and thus Supreme Court properly granted ERS' motion to dismiss the petition, without prejudice.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09244.htm 



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