In the Matter of Eric J. Koch, D.O., Respondent,v.James G. Sheehan,, Appellant.BriefN.Y.September 9, 2013 SUPREME COURT, ERIE COUNTY – INDEX NO. I-2010-6922 Court of Appeals of the State of New York IN THE MATTER OF ERIC J. KOCH, D.O., Respondent, -against- JAMES G. SHEEHAN, NEW YORK STATE MEDICAID INSPECTOR GENERAL, Appellant. REPLY BRIEF FOR APPELLANT BARBARA D. UNDERWOOD Solicitor General ANDREW D. BING Deputy Solicitor General VICTOR PALADINO Assistant Solicitor General of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Appellant The Capitol Albany, New York 12224-0341 Telephone: (518) 473-4321 Facsimile: (518) 473-8963 Dated: February 19, 2013 Reproduced on Recycled Paper i TABLE OF CONTENTS PAGE Table of Authorities ............................................................................................. ii Preliminary Statement........................................................................................ 1 Point I OMIG Acted Within Its Broad Authority In Excluding Petitioner From The Medicaid Program Based On The BPMC Consent Order And Agreement........................................... 3 Point II The BPMC Consent Order Does Not Preclude OMIG from Exercising Its Independent Authority to Exclude Providers from the Medicaid Program ........................................... 7 Point III OMIG Is Not Requited to Conduct An Independent Investigation Before Excluding A Provider Under § 515.7(e) ....... 9 Point IV Petitioner’s No Contest Plea Did Not Bar OMIG From Relying on the Consent Order as a Basis For Excluding Him From the Medicaid Program................................................. 11 Point V The Penalty OMIG Imposed Does Not Shock The Judicial Conscience And Is Therefore Not an Abuse of Discretion as a Matter of Law................................................................................. 17 Conclusion ............................................................................................... 20 ii TABLE OF AUTHORITIES PAGE CASES Addison Group, Inc. v. Daley, 382 Ill. App.3d 1036, 889 N.E.2d 701 (First Dist. 2008) ....................... 14 Barotti, Matter of v. New York State Liq. Auth., 82 A.D.2d 1004 (3d Dep’t 1981)............................................................... 13 Binghamton v. New York City Tr. Auth., 99 N.Y.2d 355 (2003) ................................................................................. 8 Bora, Matter of v. New York State Dep’t of Social Servs., 152 A.D.2d 10 (3d Dep’t 1989)................................................................. 15 Colosi v. Foley, 48 A.D.3d 1160 (4th Dep’t 2008) ........................................................ 13,15 Crawmer, Matter of v. Mills, 239 A.D.2d 844 (3d Dep’t), appeal dismissed, 90 N.Y.2d 934 (1997) ............................................................................... 12 Gaines, Matter of v. New York State Div. of Hous. & Community Renewal, 90 N.Y.2d 545 (1997) .......................................................................... 13-14 Gomez, Matter of v. Kelly, 12 N.Y.3d 883 (2009) ............................................................................... 17 Haluska, Matter of v. State of New York Office of the State Medicaid Inspection General, Sup. Ct. Chemung Co. Index No. 2009-2774, O’Shea, J., April 7, 2010)......................................................................... 10 Kelly, Matter of v. Safir, 96 N.Y.2d 32 (2001) ................................................................................. 17 King, Matter of v. Office of the Medicaid Inspector General, (Sup. Ct. Albany County Index No. 5364-10, Teresi, J., October 27, 2010) ..................................................................................... 13 iii Table of Authorities (cont’d) PAGE CASES Liguori, Matter of v. Beloten, 76 A.D.3d 1156 (3d Dep’t 2010), lv. denied, 16 N.Y.3d 702 (2011) .......................................................................... 18-19 New Yorkers for Constitutional Freedoms v. New York State Senate, 98 A.D.3d 285 (4th Dep’t), lv. denied, __ N.Y.3d __, 955 N.Y.S.2d 552 (2012) .......................................................................... 12 Pell, Matter of v. Board of Educ., 34 N.Y.2d 222 (1974) ............................................................................... 17 People v. Daiboch, 265 N.Y. 125 (1934).................................................................................. 14 Perez, Matter of v. Rhea, __ N.Y.3d __, slip op. at 6 (February 14, 2013) ................................. 17-18 Rubenfeld, Matter of v. New York State Ethics Commission, 43 A.D.3d 1195 (3d Dep’t 2007)............................................................... 18 Rutkunas v. Stout, 8 N.Y.3d 892 (2007) ................................................................................. 17 Scranton Volunteer Fire Co., Matter of v. Ball, 37 A.D.2d 757 (4th Dep’t 1971), aff’d, 30 N.Y. 2d 589 (1972)................ 13 University Heights Nursing Home, Matter of v. Chassin, 245 A.D.2d 776 (3d Dep’t 1997)............................................................... 12 STATE STATUTES CPLR 7803(3) ............................................................................................... 17 iv Table of Authorities (cont’d) PAGE STATE STATUTES (cont’d) PHL § 30 ................................................................................................. 5 § 32(6)(d) .............................................................................................. 3,5 § 32(24) ................................................................................................. 4 STATE RULES AND REGULATIONS 18 N.Y.C.R.R. § 500.1(d) ................................................................................................. 4 § 504.1(a) ................................................................................................. 4 § 515.2 ............................................................................................ 2,10 § 515.4 ............................................................................................ 2,10 § 515.7 ............................................................................................ 9,11 § 515.7(a) ................................................................................................. 9 § 515.7(e) ........................................................................................passim FEDERAL STATUTES 42 CFR § 1001.701(a)(2).......................................................................................... 4 § 1002.210 ................................................................................................. 4 PRELIMINARY STATEMENT The Office of the Medicaid Inspector General (“OMIG”) submits this reply brief in further support of its appeal and in response to petitioner’s brief and the amicus brief of the Medical Society of the State of New York. OMIG properly exercised its authority under 18 N.Y.C.R.R. § 515.7(e) to exclude petitioner from the Medicaid program based on the Board for Professional Medical Conduct (“BPMC”) consent order and agreement in which petitioner did not contest having committed professional misconduct in the treatment of two elderly emergency room patients who subsequently died. Contrary to petitioner’s assertions, OMIG’s authority is not limited to the prevention of fraud against the Medicaid program. It also includes the authority to exclude providers who have committed professional misconduct from participation in the program, in order to ensure that Medicaid recipients receive high quality medical care. Petitioner failed to preserve his claim that the consent agreement precludes OMIG from imposing further sanctions on him because the BPMC consent order was in full satisfaction of the professional misconduct charges. In addition, this claim is without merit. BPMC 2 exercises no authority over Medicaid providers and OMIG was not a party to the consent agreement. Accordingly, the consent agreement does not bind OMIG or bar it from exercising its independent authority to exclude petitioner from the Medicaid program. Petitioner is also incorrect in asserting that OMIG was required but failed to independently investigate petitioner before it could exclude him under § 515.7(e). Thus, there is no merit to petitioner's argument that OMIG should have considered the factors in 18 N.Y.C.R.R. § 515.4 when determining whether to exclude him. These factors apply only when OMIG charges a provider with unacceptable practices under § 515.2, and do not apply when, as here, it excludes a provider under § 515.7(e) following resolution of a BPMC action. Nor does the fact that petitioner pleaded “no contest” to the charges of professional misconduct preclude OMIG from excluding him from the Medicaid program under 18 N.Y.C.R.R. § 515.7(e). Petitioner failed to preserve this claim for this Court’s review. In any event, § 515.7(e) allows for exclusion based on a BPMC consent order resolved by “stipulation or agreement.” Nothing in the regulation limits the “stipulation or agreement” to one that includes a guilty plea. 3 Finally, the penalty of exclusion is not so disproportionate to the offense as to shock the judicial conscience, and is therefore not an abuse of discretion as a matter of law. Accordingly, OMIG properly excluded petitioner from the Medicaid program and this Court should reverse the Appellate Division’s order and dismiss the petition. POINT I OMIG Acted Within Its Broad Authority In Excluding Petitioner From The Medicaid Program Based On The BPMC Consent Order And Agreement Petitioner does not dispute that OMIG is authorized to exclude enrolled providers from the Medicaid program under Public Health Law (“PHL”) § 32(6)(d), but argues that OMIG may do so only for fraud, illegality or unacceptable practices involving Medicaid patients. Petitioner acknowledges that 18 N.Y.C.R.R. § 515.7(e) authorizes the sanctioning of a Medicaid provider based on a BPMC proceeding resolved by stipulation or agreement, but contends that only the Department of Health, and not OMIG, can exercise this authority (Br. at 28). According to petitioner and the amicus, OMIG’s authority is limited to its “fundamental purpose” of preventing Medicaid fraud, 4 waste, and abuse (Br. at 19-22; Amicus Br. at 18). This narrow view of OMIG’s exclusion authority is incorrect and should be rejected. Although the focus of OMIG’s statutory authority is the prevention and detection of Medicaid fraud and the recovery of Medicaid overpayments, OMIG’s authority is not limited exclusively to such matters. OMIG is also expressly authorized to perform functions necessary or appropriate to comply with the requirements of federal law. See PHL § 32(24). Federal law requires, as a condition of receipt of federal funding, that states have in place administrative procedures enabling them to exclude Medicaid providers for furnishing substandard services, whether or not the patient is a Medicaid recipient. 42 CFR §§ 1002.210, 1001.701(a)(2). State regulations implement this mandate and authorize OMIG to exclude providers who have been found to have committed professional misconduct, whether or not this conduct directly involves the Medicaid program. 18 N.Y.C.R.R. §§ 515.7(e), 504.1(a). Department of Health regulations make clear that “[o]nly qualified and responsible persons may be enrolled [in the Medicaid program] as providers of care, services or supplies.” 18 N.Y.C.R.R. § 504.1(a); see also § 500.1(d). Thus, when 5 BPMC sanctions a health care provider for furnishing substandard care to non-Medicaid patients, OMIG does not have to wait until the provider mistreats Medicaid patients before it may act to safeguard them. Rather, as it did here, OMIG may conclude that exclusion is in the best interests of the Medicaid program in view of the provider’s demonstrated professional misconduct. That is the essential purpose of § 515.7(e). Petitioner’s argument is also contrary to the Legislature’s purpose in creating OMIG, as expressed in PHL § 30. The Legislature intended to “create a more efficient and accountable structure” by consolidating various functions from the relevant governmental entities into a single office, and to grant OMIG new powers and responsibilities. Id. Among those consolidated powers and responsibilities is the exclusion of enrolled providers from participation in the Medicaid program. PHL § 32(6)(d). But under petitioner’s view, the responsibility for excluding providers from the Medicaid program would not be consolidated in OMIG but rather would be fractured and divided between OMIG and the Department of Health, which previously performed the function of excluding Medicaid providers. In that event, OMIG could only exclude 6 providers for fraud, illegality, or unacceptable practices involving Medicaid patients, whereas the Department of Health would retain the authority to exclude providers for misconduct unrelated to the treatment of Medicaid patients. Such a split of responsibility would be contrary to the legislative judgment that the function of excluding providers should be consolidated in OMIG. And as a practical matter such a split of authority would be cumbersome and difficult to implement. Thus, the more sensible reading of the statutes is that OMIG possesses all the powers and duties previously exercised by the Department of Health relating to the exclusion of Medicaid providers, including the authority under 18 N.Y.C.R.R. § 515.7(e) to exclude providers who are found to have committed professional misconduct. Nothing in the legislative hearing testimony of James G. Sheehan, former Medicaid Inspector General, cited by petitioner (Br. at 21), is to the contrary. Although Mr. Sheehan acknowledged that OMIG's central purpose was to protect the Medicaid program from fraud and abuse, he stated that OMIG could exclude providers from the program for, among other things, sexual assault, patient abuse, and criminal convictions 7 related to controlled substances (R. 252). Such conduct could form the basis of BPMC proceedings against a physician. A finding by BPMC that a physician has used controlled substances or abused non-Medicaid patients bears directly on the physician's fitness to participate in the Medicaid program. When notified of such a finding, OMIG does not have to wait until the physician mistreats Medicaid patients before it may take action under § 515.7(e) to protect them. Similarly, in this case, OMIG was authorized to exclude petitioner from the Medicaid program based on the BPMC consent order. POINT II The BPMC Consent Order Does Not Preclude OMIG From Exercising Its Independent Authority To Exclude Providers From the Medicaid Program Petitioner and the amicus assert that because the BPMC consent agreement was in “full satisfaction” of the professional misconduct charges, the settlement precludes OMIG from excluding him from the Medicaid program based on the BPMC consent agreement (Br. at 29; Amicus Br. at 8-9). Petitioner notes that BPMC and OMIG are both sub-units of the Department of Health, and argues that BPMC’s 8 settlement should bind OMIG (Br. at 29). OMIG’s action in excluding him, petitioner argues, violates the consent agreement (Br. at 29). Petitioner, however, did not raise this preclusion claim in the petition (R. 25-29), or even in his Appellate Division brief. He therefore cannot raise it for the first time in this Court. See Bingham v. New York City Tr. Auth., 99 N.Y.2d 355, 359 (2003). In any event, this claim is without merit. The BPMC has no statutory authority with respect to a provider’s participation in the Medicaid program. Consequently, BPMC had no actual or apparent authority to compromise or waive the independent authority of OMIG to exclude petitioner from the Medicaid program. Nor was OMIG a party to the consent agreement. As explained in OMIG’s main brief at pages 20-21, the authority to exclude providers from the Medicaid program was previously vested in the former Department of Social Services (DSS). And it was DSS that promulgated § 515.7(e), the regulatory authority for excluding petitioner based on the BPMC consent agreement. A BPMC consent agreement would not have barred DSS from exercising its independent authority to exclude a provider under § 515.7(e). There is no reason to believe that, in transferring the 9 exclusion authority from DSS to OMIG, the Legislature intended to make BPMC settlements binding on OMIG without OMIG’s consent or participation in the settlement. POINT III OMIG Is Not Required To Conduct An Independent Investigation Before Excluding A Provider Under § 515.7(e) OMIG’s main brief (pp. 21-24) demonstrates that an independent investigation is not required when, as here, OMIG excludes a provider from the Medicaid program under 18 N.Y.C.R.R. § 515.7(e). The plain language of § 515.7 – entitled “immediate sanctions”– authorizes OMIG to “take immediate action” to sanction a provider under specified circumstances, id. § 515.7(a). Those circumstances include when a BPMC proceeding is resolved by “stipulation or agreement,” and the violation at issue would constitute professional misconduct or unprofessional conduct. Id. § 515.7(e). The BPMC final determination conclusively resolves the issue of the provider's professional misconduct, and § 515.7(e) authorizes OMIG to rely on the results of the BPMC 10 proceeding in determining whether to take action to protect the Medicaid program and its patients. Attempting to show otherwise, petitioner mistakenly argues that OMIG was required but failed to consider the factors in 18 N.Y.C.R.R. § 515.4 in rendering its determination (Br. at 35). He relies for this claim on Matter of Haluska v. State of New York Office of the State Medicaid Inspector General (Sup. Ct. Chemung Co. Index No. 2009- 2774, O’Shea, J., April 7, 2010). The § 515.4 factors include the number and nature of program violations or other related offenses; the nature and extent of any adverse impact of the violations on recipients; the amount of damages to the program; mitigating circumstances; other facts related to the nature and seriousness of the violations; and the previous record of the provider under the Medicare, Medicaid and social services programs. These guidelines do not apply here. The guidelines in 18 N.Y.C.R.R. § 515.4 apply when a provider has been found to have engaged in “unacceptable practices” under § 515.2. But here OMIG did not sanction petitioner for having engaged in unacceptable practices. To the contrary, OMIG acted under § 515.7(e), authorizing exclusion 11 from the Medicaid program on the basis of an order of another administrative body resolving professional misconduct charges. Section 515.7 establishes an independent basis for excluding a provider (R. 185- 186). Thus, petitioner’s reliance on Matter of Haluska – which muddled the various bases for excluding a provider from the Medicaid program – is misplaced. When OMIG invokes its authority under § 515.7(e), it may exclude a provider based on a BPMC determination without having to conduct its own independent investigation. POINT IV Petitioner’s No Contest Plea Did Not Bar OMIG from Relying on the Consent Order as a Basis for Excluding Him From the Medicaid Program Petitioner argues (Br. at 28-33) that OMIG could not exclude him from the Medicaid program because he did not plead guilty to professional misconduct but merely pleaded “no contest” to the BPMC charges. First, this contention is unpreserved for this Court’s review. This claim was not raised in the petition and was asserted for the first time in petitioner’s reply to OMIG’s answer (R. 244-245). “A reply is intended to respond to new matter or defenses pleaded in the answer 12 . . . and not to buttress allegations in the petition or to belatedly add new assertions which should have been included in the petition.” Matter of Crawmer v. Mills, 239 A.D.2d 844, 845 (3d Dep’t), appeal dismissed, 90 N.Y.2d 934 (1997). Accordingly, claims or defenses raised for the first time in reply papers are not properly before the trial court, and an appellate court may decline to reach them for the first time on appeal. See Matter of University Heights Nursing Home v. Chassin, 245 A.D.2d 776, 779 (3d Dep’t 1997) (declining to review claim raised for first time in reply papers); New Yorkers for Constitutional Freedoms v. New York State Senate, 98 A.D.3d 285, 290 (4th Dep’t) (same), lv. denied, __ N.Y.3d __, 955 N.Y.S.2d 552 (2012). Neither Supreme Court nor the Appellate Division reached petitioner’s claim regarding his no contest plea. Since petitioner could have raised this issue in the petition and failed to do so, the issue is not properly before this Court. In any event, this argument is precluded by the language of § 515.7(e), which specifically provides that OMIG may impose an immediate sanction after resolution of the BPMC proceeding “by stipulation or agreement.” Nothing in the regulation requires that the stipulation or agreement include a guilty plea. 13 Petitioner’s no contest plea before the BPMC “amounted to a waiver of a hearing and an admission of the facts as charged.” Colosi v. Foley, 48 A.D.3d 1160, 1161 (4th Dep’t 2008) (internal quotations omitted) (no contest plea before Liquor Authority was admissible in civil tort action where plea concerned same incident at issue in civil action); see also Matter of Barotti v. New York State Liq. Auth., 82 A.D.2d 1004, 1005 (3d Dep’t 1981); Matter of Scranton Volunteer Fire Co. v. Ball, 37 A.D.2d 757, 758 (4th Dep’t 1971), aff’d, 30 N.Y.2d 589 (1972). Thus, petitioner’s agreement here to resolve the BPMC charges by a plea of no contest was a sufficient basis for OMIG to exclude him from the Medicaid program pursuant to section 515.7(e). See Matter of King v. Office of the Medicaid Inspector General (Sup. Ct. Albany County Index No. 5364-10, Teresi, J., October 27, 2010) (reprinted in addendum to appellant’s main brief at A.21 - A.24). In King the court rejected precisely the argument made here: that OMIG cannot sanction a provider based on a BPMC consent order and agreement in which the provider pleaded no contest. OMIG’s interpretation of section 515.7 as not requiring a guilty plea is rational and must be upheld. See Matter 14 of Gaines v. New York State Div. of Hous. & Community Renewal, 90 N.Y.2d 545, 549 (1997). Petitioner’s reliance (Br. at 30) on dictum in People v. Daiboch, 265 N.Y. 125, 128-29 (1934), is misplaced. He points to the Court's observation in dictum that a no contest plea in a criminal case “cannot be used or taken as an admission of the facts alleged in the indictment.” Id. at 129 (citing authorities). But the holding of Daibach was that a conviction resulting from a no contest plea in another state qualified as a prior felony conviction that can result in second felony offender status and a significant enhancement of penalty. Id. at 129. Daiboch thus does not hold that a no-contest plea lacks significance on the issue of culpability. And it likewise does not address the issue of how a no- contest plea should be treated in the administrative context -- whether an administrative agency may, by regulation, rely on a no-contest plea to administrative charges to exclude an individual from a governmental program. Courts in other jurisdictions have reached varying conclusions on this and similar questions. See Addison Group, Inc. v. Daley, 382 Ill. App.3d 1036, 889 N.E.2d 701, 704-05 (First Dist. 2008) (citing and discussing cases from various states on this question). 15 OMIG was entitled to conclude, as it did, that a no-contest plea to administrative charges can support a finding that a person should be excluded from the Medicaid program. In this case, the Court should find that OMIG's regulation to that effect is rational and that OMIG's application of it here was proper. It is rational for OMIG to treat a provider’s no-contest plea before the BPMC as “an admission of the facts as charged” for purposes of determining whether to exclude him from the Medicaid program. Colosi v. Foley, 48 A.D.3d at 1161. Failing to contest charges supports an inference that professional misconduct probably occurred. That inference is sufficient to justify OMIG's exclusion of petitioner from the Medicaid program especially in light of the fact that, as the Appellate Division itself recognized (R. 282), a health care provider lacks a legally cognizable property interest in participation in the Medicaid program. Matter of Bora v. New York State Dep’t of Social Servs., 152 A.D.2d 10, 12-13 (3d Dep’t 1989). And here the provider does have an opportunity to be heard. OMIG permits the provider to challenge the exclusion in an administrative appeal, in which the provider can submit documentation or written arguments on whether the determination was based on a 16 mistake of fact or whether the sanction imposed was reasonable (R. 106). Here, petitioner did not timely invoke this remedy (R. 226- 227). Petitioner suggests that he would not have entered into the consent agreement with BPMC if he had known that doing so might result in his exclusion from the Medicaid program. But regardless of what his attorney told him regarding the collateral consequences of his no contest plea, petitioner was on notice of this outcome from the plain language of 18 N.Y.C.R.R. § 515.7(e). If petitioner did not understand the collateral consequences of settling the BPMC charges, his remedy was to move to vacate the consent decree. His alleged ignorance of the collateral consequences of the BPMC consent agreement provides no basis for precluding OMIG from exercising its authority under § 515.7(e) to rely on that agreement to exclude him from the Medicaid program. 17 POINT V The Penalty OMIG Imposed Does Not Shock the Judicial Conscience and is Therefore Not an Abuse of Discretion as a Matter of Law On this record, the penalty of exclusion that OMIG imposed was not excessive. “Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law.” Matter of Kelly v. Safir, 96 N.Y.2d 32, 38 (2001); see CPLR 7803(3). “[A] penalty must be upheld unless it is ‘so disproportionate to the offense as to be shocking to one’s sense of fairness,’ thus constituting an abuse of discretion as a matter of law.” Id. (quoting Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 237 [1974]); see Matter of Gomez v. Kelly, 12 N.Y.3d 883, 884 (2009). Since judicial review is limited to questions of law, a reviewing court lacks discretionary authority or interest of justice jurisdiction in reviewing an administrative penalty. Rutkunas v. Stout, 8 N.Y.3d 897, 899 (2007); Matter of Kelly, 96 N.Y.2d at 38. In performing its limited review function, here too the court may not substitute its own judgment for that of the agency. Matter of Perez v. Rhea, ___ N.Y.3d ___, slip op. 18 at 6 (February 14, 2013); Matter of Rubenfeld v. New York State Ethics Commission, 43 A.D.3d 1195, 1200 (3d Dep’t 2007). Here, in the BPMC consent order or agreement, petitioner did not contest that he committed professional misconduct in the evaluation and treatment of two elderly emergency room patients who subsequently died. OMIG’s determination that in view of this misconduct petitioner should not be allowed to treat Medicaid patients does not shock the conscience. This exclusion does not preclude petitioner from practicing medicine or treating non-Medicaid patients. Nor does it preclude petitioner from re-applying to the program. Even crediting petitioner’s unsubstantiated assertions, Medicaid patients consist only of 10% of his office-based practice and 20% of his “hospitalist” practice (R. 18, ¶ 6). His assertion that his exclusion will cause his Medicaid patients to suffer harm and a diminution of services is entirely unsupported and conclusory. OMIG did not abuse its discretion as a matter of law in concluding that Medicaid patients would be better served by petitioner’s removal from the program. Under analogous circumstances, the Third Department upheld a physician’s exclusion in Matter of Liguori v. Beloten, 76 A.D.3d 1156 19 (3d Dep’t 2010), lv. denied, 16 N.Y.3d 702 (2011). There, the Workers Compensation Board, based upon a BPMC consent order in which the petitioner admitted to inadequate recordkeeping, removed a physician from its list of eligible providers authorized to provide care and treatment to workers who suffered work-related injuries. Supreme Court ordered the Board to restore the physician to the eligibility list, but the Appellate Division reversed, concluding that the penalty imposed did not constitute an abuse of discretion as a matter of law. A similar conclusion is warranted here. 20 CONCLUSION The Court should reverse the Appellate Division’s order and dismiss the petition. Dated: Albany, New York February 19, 2013 BARBARA D. UNDERWOOD Solicitor General ANDREW D. BING Deputy Solicitor General VICTOR PALADINO Assistant Solicitor General of Counsel Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Appellant By: _____________________________ VICTOR PALADINO Assistant Solicitor General Office of the Attorney General The Capitol Albany, New York 12224 Telephone (518) 473-4321 Reproduced on Recycled Paper
