State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 16, 2015 519388 

________________________________

In the Matter of SARAH FULLER

et al.,

Appellants,

v MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT

OF HEALTH et al.,

Respondents.

________________________________

Calendar Date: February 18, 2015

Before: Peters, P.J., Lahtinen, Garry and Lynch, JJ.

__________

Sussman and Watkins, Goshen (Michael H. Sussman of

counsel), for appellants.

Eric T. Schneiderman, Attorney General, Albany (Jonathan D.

Hitsous of counsel), for New York State Department of Health,

respondent.

Iseman, Cunningham, Riester & Hyde, LLP, Albany (Brian M.

Culnan of counsel), for Bon Secours Health Systems, respondent.

__________

Lahtinen, J.

Appeal from an order and judgment of the Supreme Court

(Platkin, J.), entered November 7, 2013 in Albany County, which,

among other things, dismissed petitioners' application, in a

proceeding pursuant to CPLR article 78, to, among other things,

review a determination of respondent Department of Health

authorizing Bon Secours Community Hospital to discontinue the

provision of maternity services.
-2- 519388 

Respondent Bon Secours [Charity] Health Systems, on behalf

of one of its hospitals – Bon Secours Community Hospital, located

in the City of Port Jervis, Orange County – filed an application

in October 2011 with respondent Department of Health to decertify

its obstetrics services. The Hospital cited, among other

reasons, a significant decline in deliveries over recent years

and the proximity within less than 25 miles of a medical center

with a level 2 neonatal intensive care unit and a hospital with a

level 1 perinatal center. Community members and governmental

officials who were opposed to the plan had meetings with Hospital

administrators and Department officials. Ultimately, in December

2012, the Department approved the decertification application

subject to certain conditions aimed at addressing some concerns

expressed about decertification, particularly as involved

potential burdens for indigent patients and ensuring that

services for emergency birth situations were maintained. 

Petitioners, who live near the Hospital and were pregnant at the

time that the Department approved decertification, commenced this

proceeding contending that the Department's determination was

arbitrary, capricious and contrary to law. Supreme Court

dismissed the petition and this appeal ensued.

"Where, as here, . . . petitioner[s] challege[] an

administrative determination made where a hearing is not

required, appellate review is limited to whether the

determination lacks a rational basis and is, thus, arbitrary and

capricious" (Matter of Bais Sarah Sch. for Girls v New York State

Educ. Dept., 99 AD3d 1148, 1150 [2012], lv denied 20 NY3d 857

[2013] [internal quotation marks and citations omitted]). "An

action is arbitrary and capricious when it is taken without sound

basis in reason or regard to the facts" (Matter of Peckham v

Calogero, 12 NY3d 424, 431 [2009] [citation omitted]). "If the

[agency's] determination has a rational basis, it will be

sustained, even if a different result would not be unreasonable"

(Matter of Ward v City of Long Beach, 20 NY3d 1042, 1043 [2013]

[citation omitted]). We "may not substitute [our] judgment for

that of the agency responsible for making the determination," and

"[d]eference to the judgment of the agency, when supported by the

record, is particularly appropriate when the matter under review

involves a factual evaluation in the area of the agency's

expertise" (Matter of Warder v Board of Regents of Univ. of State
-3- 519388 

of N.Y., 53 NY2d 186, 194 [1981], cert denied 454 US 1125 [1981];

see Matter of Peckham v Calogero, 12 NY3d at 431). 

The record contains a rational basis for the Department's

determination. In the years before the decertification

application, deliveries had declined and reached a level where

there was concern about keeping ample staffing and the ability to

maintain a high level of care. The Hospital had been providing

around the clock obstetrical care, but had a maternity ward

occupancy of less than 20% at the time of its application. Other

hospitals were located within a reasonable proximity and many

potential patients were already using those facilities for

childbirth. Plans were put in place by the Hospital to provide

transportation to the other facilities for those without means

for such travel and to keep space at the Hospital for emergency

births, as well as provide obstetrics training to the Hospital's

emergency department staff. Although petitioners submitted proof

challenging aspects of the Department's findings and a different

result could have been reasonably reached, the Department's

determination has a sound basis in reason and is supported by the

record.

The other grounds urged by respondents for affirming –

i.e., mootness and standing – are academic. 

Peters, P.J., Garry and Lynch, JJ., concur.

ORDERED that the order and judgment is affirmed, without

costs.

ENTER:

Robert D. Mayberger

Clerk of the Court