Matter of Molloy v. New York State Workers' Compensation Board , 44 N.Y.S.3d 789 ( 2017 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 12, 2017 522940
________________________________
In the Matter of KYRAN T.
MOLLOY,
Appellant,
v MEMORANDUM AND ORDER
NEW YORK STATE WORKERS'
COMPENSATION BOARD et al.,
Respondents.
________________________________
Calendar Date: November 15, 2016
Before: Garry, J.P., Egan Jr., Devine, Clark and Mulvey, JJ.
__________
McNamee, Lochner, Titus & Williams, PC, Albany (Scott C.
Paton of counsel), for appellant.
Eric T. Schneiderman, Attorney General, Albany (Laura
Etlinger of counsel), for respondents.
__________
Mulvey, J.
Appeal from a judgment of the Supreme Court (Ceresia, J.),
entered February 3, 2016 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent Workers'
Compensation Board declining to renew petitioner's license to
represent workers' compensation claimants.
In 2001, petitioner obtained a license to practice before
respondent Workers' Compensation Board as a nonattorney
representative pursuant to Workers' Compensation Law § 24-a.
Although his license was repeatedly renewed, in January 2015, the
Board denied his application for renewal, citing an interview
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panel's recommendation of nonrenewal based upon its finding that
petitioner had failed to "meet the standards and requirements for
a license." Petitioner commenced this CPLR article 78 proceeding
to annul the Board's determination, and Supreme Court dismissed
the petition. Petitioner now appeals.
We affirm. A nonattorney is permitted to represent
claimants before the Board provided that he or she has received a
license from the Board, issued "in accordance with the rules
established by it" (Workers' Compensation Law § 24-a [1]).
"[T]he applicable regulations require that a licensed
representative have a competent knowledge of the law and
regulations relating to workers' compensation matters and the
necessary qualifications to render service to his or her client
and permit the Board, in its discretion, to require an applicant
for renewal of a license to submit to an oral review to
demonstrate such knowledge" (Matter of Silverman v New York State
Workers' Compensation Bd., 101 AD3d 1422, 1424 [2012] [internal
quotation marks and citations omitted], lv denied 21 NY3d 860
[2013]). In accordance with an order issued per Workers'
Compensation Law § 141, oral reviews are conducted by a three-
member panel consisting of a member of the Board, a
representative of the Board's licensing unit and a representative
of the Board's office of general counsel.
Petitioner appeared before a three-member panel in August
2014, and the panel concluded that his responses to a series of
questions pertaining to his knowledge of workers' compensation
and disability topics exhibited a fundamental lack of
understanding of key concepts. A detailed explanation and
substantiation of the panel's recommendation of nonrenewal was
furnished to Supreme Court through affidavits of two of the three
members of the panel, along with a transcript of the interview.
The third member passed away before the proceeding was
commenced.1
1
The third member had attended the full review meeting and
the minutes of the meeting show that he made the motion to not
renew petitioner's license.
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First, we reject petitioner's contention that, because the
panel members were not part of the Board's final decision-making
process, Supreme Court erred in considering these affidavits in
support of the Board's determination. Although we agree that the
Board's determination letter, standing alone, fails to "contain
sufficient information to permit this Court to both discern the
rationale for the administrative action taken and undertake
intelligent appellate review thereof" (Matter of Office Bldg.
Assoc., LLC v Empire Zone Designation Bd., 95 AD3d 1402, 1405
[2012]), we find that the affidavits were properly considered by
Supreme Court because they were furnished by individuals having
"'firsthand knowledge of the decision-making process'" (Matter of
Menon v New York State Dept. of Health, 140 AD3d 1428, 1431
[2016], quoting Matter of Office Bldg. Assoc., LLC v Empire Zone
Designation Bd., 95 AD3d at 1405; see e.g. Matter of Brown v
Sawyer, 85 AD3d 1614, 1615-1616 [2011]). We further agree with
Supreme Court that based on the record, including these
affidavits, a rational basis exists to support the Board's
determination not to renew petitioner's license.
Turning to petitioner's claims of unfairness with regard to
the "closed book" format of the interview, the record shows that
during his prior 2011 review, petitioner was warned that the
interview process was becoming more rigorous and that he would
need to improve his understanding of the relevant law. Further,
two notices sent to petitioner prior to the 2014 interview
clearly advised that it would be "lengthier and more in-depth"
and that "applicants are required to be familiar with any
relevant laws, rules, regulations, procedures, policies and case
decisions." Notably, petitioner has failed to furnish any
authority for his contention that he had a due process right to
rely on written materials during the interview.
Finally, we are unpersuaded that respondents' failure to
include in the record a copy of the panel's recommendation
required dismissal of the petition. Petitioner sought a copy of
the document directly from respondents, yet it was withheld
pursuant to a Freedom of Information Law exemption for nonfinal
intra-agency communications (see Public Officers Law § 87 [2]
[g]). We find that the submission of the interview transcript,
the panel members' affidavits and other exhibits furnish "an
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adequate basis upon which to review the rationality" of the
Board's determination (Matter of Global Tel*Link v State of N.Y.
Dept. of Correctional Servs., 70 AD3d 1157, 1159 [2010] [internal
quotation marks and citations omitted]).
Garry, J.P., Egan Jr., Devine and Clark, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court