Khan v. New York State Department of Health

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 CPLR 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 96 NY2d 834).

Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), 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.