Neiman v. Axelrod

¶1While we agree that the hearing officer had the authority to direct the department to produce the requested documents (Public Health Law, § 12-a, subd 1), in our view the hearing officer did not abuse his discretion in refusing to di*766rect disclosure (see Matter of Irwin v Board of Regents, 27 NY2d 292, 298-299). The essence of petitioner’s argument is that the department records he seeks would show that many of the documents requested by the department had previously been provided to and examined by the department. He contends, therefore, that the records are necessary to his defense of the charges that he failed to produce the requested documents since they will show his compliance with the request. While there is some support in the record for petitioner’s contention that he produced many of the documents when initially requested to do so, a fact conceded by one department official at the hearing, the record further reveals that petitioner refused to comply with a later request that the documents again be produced so that they could be re-examined. It is this latter refusal that is the subject of many of the charges at issue. Pursuant to subdivision 4 of section 2803 of the Public Health Law, petitioner is required to “furnish to the department such reports and information as it may require”. Implicit in this broad statutory grant of authority is the power to request the later production of documents that have previously been requested and produced. The department exercised this power here and petitioner refused to comply. While the department records sought by petitioner might show his compliance with the initial request to produce the documents, they are irrelevant to the question of whether he refused to comply with the later request to again produce them. In refusing to comply with the request to again produce the documents, petitioner apparently felt that the sole purpose for the request was harassment. Assuming that petitioner can simply refuse to comply with the request and assert as a defense in the administrative proceeding based upon that refusal the lack of a legitimate purpose for the request, there is nothing in this record to suggest that the department’s desire to re-examine the documents was not in furtherance of its duties under article 28 of the Public Health Law. Nor is there any indication that the department records sought by petitioner would show otherwise. Petitioner’s sweeping request for all department records relating to the audit is, in our view, nothing more than a “fishing expedition” intended to obscure the narrow issue involved in the administrative proceeding—whether petitioner refused to comply with the department’s request for documents. Since there is substantial evidence to support respondent’s determination and since petitioner’s arguments that he was deprived of a fair hearing are without merit, the determination should be confirmed, and the petition dismissed.