State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 23, 2015 519018 

________________________________

In the Matter of RAYMOND

TARTAKOFF,

Petitioner,

v MEMORANDUM AND JUDGMENT

NEW YORK STATE EDUCATION

DEPARTMENT et al.,

Respondents.

________________________________

Calendar Date: May 27, 2015

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

__________

Wilson Elser, Albany (Benjamin F. Neidl of counsel), for

petitioner.

Eric T. Schneiderman, Attorney General, New York City

(Rachel J. Pasternak of counsel), for respondents.

__________

Lahtinen, J.

Proceeding pursuant to CPLR article 78 (initiated in this

Court pursuant to Education Law § 6510 [5]) to review a

determination of the Board of Regents which, among other things,

suspended petitioner's license to practice as a licensed clinical

social worker in New York for two years.

The Office of Professional Discipline of respondent New

York State Education Department (hereinafter OPD) investigated

petitioner, a licensed clinical social worker, after receiving a

complaint from one of his clients, JC. He was eventually charged

with three specifications of professional misconduct, namely,

negligence on more than one occasion, incompetence on more than
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one occasion and unprofessional conduct. The charges were

premised upon allegations that, while treating JC between October

2004 and June 2008, petitioner had, among other things, actively

socialized with both JC's then husband, DC (who was also

petitioner's client), as well as JC's father, and that he further

failed to maintain accurate records. Following a hearing, the

Hearing Panel of the State Board for Social Work found petitioner

guilty of the three specifications and recommended that his

license be revoked. The Regents Review Committee accepted the

Hearing Panel's findings of fact and determination of guilt, but

modified the penalty to, among other things, suspend his license

for five years, with the last three years of the suspension

stayed and five concurrent years of probation. The Board of

Regents accepted the Regents Review Committee's recommendation

and penalty. Petitioner commenced this CPLR article 78

proceeding challenging the Board's determination.

Petitioner argues that certain treatment records of JC and

DC's couples therapy were improperly admitted into evidence at

the hearing in violation of the social worker privilege (see CPLR

4508) since DC had not consented. Although administrative

agencies are not bound by strict rules of evidence (see e.g.

Matter of Tsirelman v Daines, 61 AD3d 1128, 1130 [2009], lv

denied 13 NY3d 709 [2009]), they are required to "give effect to

the rules of privilege recognized by law" (State Administrative

Procedure Act § 306 [1]). Here, petitioner had already released

the relevant records to OPD during its investigation. His

objection prior to the hearing appears directed at whether JC had

waived the privilege. Petitioner called DC as a witness and DC

freely answered questions regarding the treatment covered by the

records. DC did not assert the privilege. The privilege is

intended to protect the client (cf. People v Osorio, 75 NY2d 80,

84 [1989] [discussing the attorney-client privilege]) and, under

the circumstances, we are unpersuaded that receipt of the records

deprived petitioner of a fair hearing.

Petitioner further contends that he did not receive a fair

hearing because his chosen counsel was disqualified. We cannot

agree. Petitioner retained Michael Sussman, who was already

representing JC in a separate civil rights action against her

employer in federal court. OPD moved to disqualify Sussman from
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representing petitioner. "When the representation is

simultaneous, the burden shifts to the attorney to demonstrate

that no actual or apparent conflict in loyalties exists"

(Leonardo v Leonardo, 297 AD2d 416, 418 [2002] [citation

omitted]). "[D]oubts as to the existence of a conflict of

interest must be resolved in favor of disqualification" (Sperr v

Gordon L. Seaman, Inc., 284 AD2d 449, 450 [2001] [internal

quotation marks and citation omitted]; see Halberstam v

Halberstam, 122 AD3d 679, 679 [2014]). To represent petitioner,

Sussman would have had to effectively cross-examine JC, who was a

key witness in OPD's case against petitioner. His simultaneous

representation of her in a pending federal action potentially

gave him access to information not otherwise available for use on

cross-examination. Moreover, in this proceeding, Sussman would

be attempting to diminish her credibility, whereas an opposite

result would be pursued in the federal action. There was a

sufficient conflict of interest to justify disqualifying Sussman. 

We consider next petitioner's challenge to the merits of

the Board's determination. The Board's determination will not be

disturbed if it is supported by substantial evidence (see Matter

of D'Angelo v State Bd. for Professional Med. Conduct, 66 AD3d

1154, 1155 [2009]; Matter of Ho v Novello, 27 AD3d 908, 910

[2006]). OPD's expert, David Olsen, testified in detail

regarding boundaries that a social worker must maintain, the

training social workers receive about boundaries, and the reasons

for the boundaries, which include protecting client

confidentiality and making the client feel safe. He opined that

petitioner had many boundary violations and that his actions

deviated from the acceptable practices within the profession. 

Among other things, petitioner had, during the relevant time and

while JC was a client, played golf with DC and JC's father and

had eaten meals with JC and DC at their home. Petitioner

attempted to explain his presence at JC's home as consistent with

a counseling theory advanced by Salvator Minuchin advocating

sessions in a client's home as facilitating the therapeutic

process. However, petitioner acknowledged that there was no

documentation in his notes that he was using Minuchin's

techniques in counseling JC and DC. Olsen also testified

regarding the many deficiencies in petitioner's records

including, but not limited to, the lack of progress notes
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supporting his various diagnoses and the absence of any treatment

plan. Substantial evidence supports the Board's determination.

"The penalty in a disciplinary proceeding governed by the

Education Law rests within the discretion of the reviewing agency

and will not be disturbed unless it is so disproportionate to the

offense as to shock one's sense of fairness" (Matter of Genco v

Mills, 28 AD3d 966, 967 [2006] [citations omitted]; see Matter of

Yohanan v King, 113 AD3d 971, 972 [2014], appeal dismissed 23

NY3d 953 [2014], lv denied 24 NY3d 902 [2014]). The penalty did

not run afoul of such standard, and it was not error to consider

as a factor in the penalty a consent order in another

disciplinary matter involving petitioner.

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

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court