Hertzberg v. Board of Regents of University of State of New York

Proceeding initiated in this court pursuant to subdivision 4 of section 6510 of the Education Law to annul a determination of the Commissioner of Education which remanded a disciplinary proceeding against petitioner to a panel of the New York State Board for Professional Engineering for a new hearing. On January 9, 1979, petitioner, a licensed professional engineer, was charged with certain acts' of professional misconduct in violation of provisions of section 6509 of the Education Law. Following a hearing before a panel of professional engineers, the panel found that petitioner was not guilty of the charges and recommended that the charges be dismissed. Both a review committee of the Board of Regents and later the Board of Regents itself disagreed with this finding and recommendation, however, and as a result, the matter was remanded to the hearing panel, pursuant to section 6510 (subd 3, par c) of the Education Law, for a new hearing. This proceed 696 ing ensued. Petitioner here challenges the nonfinal order remanding this matter to the hearing panel for a new hearing, and, accordingly, he has concededly failed to exhaust his available administrative remedies. Moreover, there has been no showing that petitioner has been aggrieved by the procedures followed or that his further pursuit of the available administrative remedies would be futile, particularly since, should the panel again find petitioner not guilty, its determination will be final and binding upon the Board of Regents (Education Law, § 6510, subd 3, par c). Under these circumstances, this proceeding was prematurely instituted, and, therefore, the petition should be dismissed (CPLR 7801; Matter of Milowitz v University of State of N. Y., 76 AD2d 1004; cf. Press v County of Monroe, 72 AD2d 915; Matter of Schwartz v Bank St. Coll. of Educ., 51 AD2d 947). Petition dismissed, without costs. Greenblott, J. P., Sweeney, Main, Mikoll and Herlihy, JJ., concur.