Upon further consideration …

On May 5, the New York State Court of Appeals reversed the Appellate Division, Fourth Department in the Article 78 case of Matter of Infante, as Administrator of Estate of Rosemary Infante v. Dignan, MD, Medical Examiner, __NY2d__, 2009 WL 1181328.
My Nov., 20, 2008 column in this space concerned the then-recent Fourth Department decision in the case, and encouraged practitioners to zealously advocate for their clients by continuing to submit new facts to a court even after filing an Article 78 petition.
In reversing the Appellate Division, however, the Court of Appeals removed some of the wind from those sails, as its decision focused exclusively on the record of the original decision-making body.
In Matter of Infante, the Appellate Division ruled that the Monroe County coroner’s finding that the decedent committed suicide was arbitrary and capricious, and reversed Justice Stander’s Supreme Court decision denying the decedent father’s petition to correct the death certificate. 55 AD3d 1258 (Fourth Dept. 2008).
The Appellate Division cited and relied on letters submitted by the father in support of his Article 78 petition, which was not part of the body of evidence on which the coroner made his decision, and imposed a rebuttable presumption against suicide on the coroner. Id. at 1259. Two Appellate Division justices dissented, id. at 1261-1263, and the Court of Appeals noted its jurisdiction as a result pursuant to CPLR 5601(a). Matter of Infante, 2009 WL 1181328, at 2.
The tragic case involved a former nun who lived with her two young adopted children and died suddenly from a drug overdose on Easter Sunday. The Monroe County coroner conducted an investigation to determine the cause of death, and concluded it was the result of suicide. The decedent’s father, as administrator of the estate, commenced the Article 78 petition, his sole interest being the reputation of his late daughter. No insurance proceeds were at stake. 55 AD3d at 1259-1260.
The petition was dismissed and the coroner’s decision was confirmed, but the Appellate Division held that the decision was arbitrary and capricious. The court was critical of the coroner’s investigation, highlighting his failure to explain in his decision whether he interviewed family members, friends or the treating psychiatrist; reviewed medical records; or considered the decedent’s religious background. The coroner admitted that he failed to identify what prescription medications the decedent was taking at the time of her death. Id. at 1260.
The Appellate Division also appeared persuaded by two physician letters submitted by the father with his Article 78 petition, which were not part of the coroner’s record. The physicians were friends of the decedent and argued that she never would have committed suicide as she was deeply religious and died on Easter Sunday. The decedent was devoted to her two young children and had expressed her plans to raise them.
The father also submitted a letter from the decedent’s treating psychiatrist, who said she was not suicidal but instead happy to have her children. Id. at 1260.
Notwithstanding the letters, the Court of Appeals agreed with the dissent at the Appellate Division (Justices Scudder and Hurlbutt) and Supreme Court Justice Stander. The Court of Appeals noted that the legal presumption against a finding of suicide has been applied only in legal proceedings involving insurance proceeds, and has no place in a coroner’s statutorily-prescribed duty to investigate a cause of death. Matter of Infante, 2009 WL 1181328, at 3.
Once it rejected the application of the presumption against suicide, the Court of Appeals reviewed solely the coroner’s record. It noted that a coroner’s conclusion could be rejected only if the decision was arbitrary. Id. at 3. The court identified the steps the coroner took in conducting the investigation, which included removing and analyzing several samples of decedent’s body.
The coroner found levels of Prozac were 18 to 20 times higher than the levels occasioned by normal therapeutic usage, and the levels in the decedent’s liver were higher when compared to those in the heart blood. The coroner cited those factors as “most significant,” and led him to conclude that the death was intentional, not the result of “chronic overusage or accidental overdose.” Id.
Accordingly, the Court of Appeals found that the decision had a “reasonable basis,” therefore it was not arbitrary. The court noted that, since the coroner made the determination in his area of medical and scientific expertise, his judgment had to be “accorded great weight and judicial deference.” Id.
Notably, the Court of Appeals made no mention of the letters submitted with the petition by the decedent’s father. They were not part of the coroner’s record, but were cited by the Appellate Division in its decision. The Court of Appeals focused exclusively on the coroner’s record, as would be expected in an Article 78 review.
In matters involving Article 78, courts may not substitute their own judgment for that of the administrative agency when its decision has a rational basis, Arrocha v. NYC Board of Education, 93 NY2d 361,363 (1999), and the evaluation must be confined to the record before the body or officer. Yarbough v. Franco, 95 NY2d 342, 347 (2000).
Instead of the lesson posited in my November column — that a zealous attorney may find it advantageous to continue submitting facts along with a petition for Article 78 review — practitioners are better served following the advice of the dissent in Matter of Infante. Persuasive and necessary facts are not part of the body or officer’s record whose decision soon may be subject to an Article 78 review. It’s best to submit those facts to the decision-making body, along with an artfully crafted application for reconsideration. Matter of Infante, 55 AD3d at 1263.
And without question, the sooner the better.
Paul L. Leclair is a partner in the Rochester law firm of Leclair Korona Giordano Cole LLP, where he concentrates his practice in civil litigation with an emphasis on business/commercial, construction and personal injury matters.