In the Matter of United Environmental Techniques, Inc. v. State of New York Department of Health | Court Opinion

Opinions

Order and judgment (one paper), Supreme Court, New York County (Lewis Friedman, J.), entered on or about May 18, 1994, which granted petitioner’s application pursuant to CPLR article 78 to annul respondent’s revocation of petitioner’s provisional approval as an asbestos safety training sponsor to the extent of remanding the matter to respondent for an administrative hearing, unanimously affirmed, without costs.

Respondent’s rule requiring cause for its revoking or suspending provisional as well as final approvals of asbestos training safety programs (10 NYCRR 73.9), and its failure to revoke, suspend or otherwise take any action with respect to petitioner’s provisional approval within the six-month maximum life span of such an approval (10 NYCRR 73.8 [a]), supported a legitimate claim of entitlement to continuation of the approval (see, Barry v Barchi, 443 US 55, 64, n 11; Richardson v Town of Eastover, 922 F2d 1152, 1158), which may be invoked at a postsuspension hearing (see, Barry v Barchi, supra, at 66). Under the three-pronged test set forth in Mathews v Eldridge (424 US 319, 335), petitioner’s interest in *237the continuation of its program is strong, having operated it for at least nine months, employed several people and made capital expenditures (see, Charry v Hall, 709 F2d 139); respondent’s interest in not conducting a postsuspension hearing is slight, graduates of petitioner’s training program being subject to respondent’s certification requirements before engaging in actual asbestos removal; and, as the decision to revoke was based on discrepancies in a class attendance record, a hearing at which the credibility of witnesses can be assessed, will reduce the risk of error. There is no merit to respondent’s other argument that petitioner’s possible lack of authority to do business in New York is a jurisdictional bar (Tri-Terminal Corp. v CITC Indus., 78 AD2d 609). Concur—Rosenberger, J. P., Wallach, Rubin, Kupferman and Asch, JJ.