February 03, 2021

An administrative penalty or sanction must be sustained by a judicial tribunal absent a showing that the penalty is shocking to one's sense of fairness

The petitioner [Plaintiff] in this CPLR Article 78 proceeding was found to have violated 48 RCNY 6-25[a][9], a provision prohibiting a representative of a party appearing in a proceeding before Office of Administrative Trials and Hearings [OATH] from submitting any documents "which he or she knows, or reasonably should have known, to be false, fraudulent or misleading."

OATH found Plaintiff had violated 48 RCNY 6-25[a][9] by submitting "fraudulent receipts on behalf of two separate clients in support of their claims" and permanently barred Plaintiff from appearing before it as a nonattorney representative. Plaintiff appealed

Supreme Court overturned OATH's decision and remanded the matter to it "for an in-person hearing on the issue of whether [Plaintiff] had violated OATH's rules." OATH, in turn, appealed the Supreme Court's ruling.

The Appellate Division, citing Matter of Kelly v Safir, 96 NY2d 32, reversed the Supreme Court's decision on the law, explaining that an administrative penalty or sanction must be upheld unless it is "so disproportionate to the offense as to be shocking to one's sense of fairness."

OATH had determined the Plaintiff had submitted fraudulent receipts on behalf of two separate clients in support of their claims that they had missed their hearing dates because their cars broke down on their way to their separate hearings. The Appellate Division held that "[u]nder the circumstances, the penalty here is not shocking to one's conscience."

In addition, the Appellate Division noted that the record indicated that Plaintiff was given the opportunity to submit a written rebuttal to the charges after he was informed of the claims made against him and that OATH reviewed his submission before rendering its final determination.

The Appellate Division, observing that Plaintiff had the opportunity to submit a written rebuttal, opined that this opportunity sufficed "as a remote method of appearing before the Chief Administrative Law Judge, and is allowed for by OATH's own rules," citing  Matter of Thornton v New York City Dept. of Educ., 167 AD3d 444.

Click HEREto access the text of the Appellate Division's opinion.

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