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 threemember 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