Matter of Palyani v State of New York

[*1] Matter of Palyani v State of New York 2007 NY Slip Op 52104(U) [17 Misc 3d 1122(A)] Decided on October 25, 2007 Supreme Court, New York County Bransten, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 25, 2007
Supreme Court, New York County

In the Matter of the Application of Shalva Palyani, Petitioner,

against

The State of New York, Department Of State, Division of State Athletic Commission, , Respondent.



118347/06



Anthony Maragno, Esq. (for petitioner) and Eugene Benger, Esq. (from the Attorney General's Office, for respondent).

Eileen Bransten, J.

In this CPLR Article 78 proceeding, petitioner Shalva Palyani ("Mr. Palyani") seeks a judgment compelling the New York State Athletic Commission (the "Commission") to terminate the boxing suspension it imposed against him. Verified Petition ("Pet."), at ¶¶ 36, 39.

Background

Mr. Palyani was born in the Republic of Georgia. In 2002, at age 26, he moved to the United States to pursue a career in boxing. Shortly thereafter, Mr. Palyani obtained licenses to box in Pennsylvania and South Carolina. He participated in four professional boxing matches, winning all four fights with three by knockout. Reply Affirmation ("Reply"), at ¶ 41.

In 2003, Mr. Palyani submitted an application for a boxing license or temporary working permit to the Commission. As part of the application process, he underwent a brain MRI that revealed an "area of focal encephalomalacia * * * consistent with old trauma." Verified Answer ("Answer"), at ¶ 46.

In mid-December 2003, instead of simply denying Mr. Palyani's application, the Commission informed him: "PLEASE TAKE NOTE YOU HAVE BEEN SUSPENDED BY THE NEW [*2]YORK BOXING COMMISSION MEDICAL DEPARTMENT 12/9/2003 INDEFINITE."

Pet., Ex. C; Answer, at ¶ 47.

In an effort to have the suspension lifted, in February 2004, Mr. Palyani supplied a new MRI report. Answer, at ¶ 49; Reply Affirmation ("Reply"), at ¶ 52. A couple of months later, he also provided the Commission with a neurologic consultation report and a neurologic evaluation. Answer, at ¶ 50; Reply, at ¶ 58.

In July or August of 2004, Dr. Barry Jordan, medical director of the Commission, informed Mr. Palyani's manager that if Mr. Palyani underwent a PET scan, he would be willing to review the results in connection with the suspension. Reply, Ex. J., at ¶ 14. Mr. Palyani underwent a PET scan. Answer, at ¶ 52.

After a December 2004 MRI report revealed "no interval change," in April 2005, the medical advisory board determined that the suspension would remain in place. Answer, at ¶ 55; Reply, at ¶ 70.

Several months later, in January 2006, Mr. Palyani's attorney requested that the medical suspension be lifted based on the medical evidence that had been submitted. Answer, at ¶ 56. Reply, at ¶ 73. By letter dated January 31, 2006, the Commission informed Mr. Palyani that based on its policy "which prohibits licensing a professional boxer [who] has previously sustained a brain injury," the request was denied "in its entirety" and "his indefinite medical suspension [was to] remain in full force and effect." Commission Record, at 73 (emphasis added).

Several months later, on October 24, 2006, Mr. Palyani demanded that the Commission remove his suspension. Pet., at ¶ 22. He stressed that he had never been issued a New York boxing license and argued that the suspension was unauthorized. Pet., Ex. E. He further pointed out that a boxing license is only valid for one year, and as such, even if he had been granted a license by the Commission, his " suspension' should have lapsed with the expiration of the license." Id. Mr. Palyani explained that because "the Commission's action of placing and continuing [him] on suspension' is not authorized by statute or regulation, * * * the Commission has a legal duty to remove [him] from the suspension list, and * * * the Commission is presently acting without jurisdiction." Id.

By letter dated November 7, 2006, the Commission denied "any and all demands for relief in their entirety." Pet., at ¶ 23; see also, Ex. F.

The Professional Boxing Safety Act of 1996, 15 U.S.C. § 6306(a)(2)(B), requires all members of the Association of Boxing Commissions to adopt any medical suspension issued by another member. Since the Commission is a member of the Association, as are the boxing commissions in every state, Mr. Palyani's name is registered on a national suspension list and he cannot box anywhere in the United States. Pet., at ¶¶ 24, 26.

On December 11, 2006a little over a month after receiving the Commission's refusal of his demandMr. Palyani commenced this Article 78 proceeding. He argues that in [*3]maintaining his suspension, the Commission is acting in excess of its jurisdiction and in violation of its regulations. Pet., at ¶ 14-15. In particular, Mr. Palyani asserts that the Commission had no authority to suspend him since it had never issued any license in the first place and that even if it did "the term for a suspension and license has long since expired." Pet., at ¶¶ 30, 34. 38. Mr. Palyani requests that the Commission "be compelled and/or mandated to perform its administrative, ministerial, and legal duty of terminating [his] suspension and removing [his] name from the national suspension list." Pet., at ¶ 37.

The Commission responds that its "exceedingly broad" authority over boxing establishes that its "jurisdiction is not restricted to licenses." Answer, at ¶¶ 64, 70, 74. It urges that "the Commission's power and duty to safeguard the health and safety of boxers cannot be circumscribed to reach only licensees." Id., at ¶¶ 65, 66.

The Commission relies on Unconsolidated Laws § 8917(d), which sets forth that it "may at any time suspend, revoke, or deny a boxer's license or temporary working permit for medical reasons." Answer, at ¶ 67 (emphasis supplied by the Commission). More particularly, the Commission asserts that it is responsible to ensure the health and safety of boxers and protect them from brain injuries. Id., at ¶ 68.

The Commission maintains that because Mr. Palyani applied for a license, it had the right to suspend him. Id., at ¶ 71. It points out that even after a license expires, the Commission has jurisdiction to impose discipline, and therefore, its powers extend even to unlicensed individuals. See, Matter of D'Amato v. Krulewitch, 23 Misc 2d 473, 475 (Sup. Ct., NY County 1960); Matter of Wallman v. New York State Athletic Commn., 20 Misc 2d 398 (Sup. Ct. NY County 1959). The Commission contends, that a conclusion that Mr. Palyani is not subject to its jurisdiction would provide unlicensed individuals with "more protections than licensees." Id., at ¶ 73.

The Commission also argues that mandamus to compel is not available to enforce performance of a discretionary duty. Answer, at ¶ 76. It maintains that "the Commission's decisions to medically suspend [Mr. Palyani] and to maintain that suspension were discretionary acts." Id., at ¶ 78. Because there is no "specific statutory authority" requiring that it lift a medical suspension, according to the Commission, mandamus is inapplicable.

Finally, the Commission contends that Mr. Palyani's "unreasonable delay" constitutes laches and precludes the relief sought. The Commission maintains that Mr. Palyani's unexcused three-year delay in making a demand that his allegedly illegal suspension be revoked bars his petition. Answer, at ¶ 86.

On reply, Mr. Palyani reiterates his suspension is unprecedented and unauthorized. Reply, at ¶ 4. He asserts that he had extensive contact with the Commission and made numerous efforts to obtain relief throughout his suspension, and therefore, laches does not bar his petition. Reply, at ¶¶ 50-71.

Because the suspension is plainly unlawful, the petition is granted and Mr. Palyani's suspension must be revoked.

[*4]Analysis

At the outset, this Court has already determined that Mr. Palyani is not challenging a discretionary act; rather, he is seeking to compel the Commission to perform its ministerial obligation of lifting the unauthorized suspension. See, April 26, 2007 Decision and Order, at 6. Based on the statutory scheme applicable to boxing, Mr. Palyani has a clear legal right to termination of his suspension.

Although the Commission has broad authority and is "vested with the sole discretion management, control and jurisdiction over all * * * boxing and sparring matches * * * within the state of New York," its power is not unlimited.

New York Unconsolidated Laws § 8917which tellingly is titled "Revocation or suspension of licenses"authorizes the Commission "at any time [to] suspend, revoke or deny a boxer's license or temporary working permit for medical reasons." Based on the statute's clear language the Commission, at any time, has the power for "medical reasons" to either: (1) suspend a license or permit, (2) revoke a license or permit, or (3) deny a license or permit. Neither the statute nor any other authority enables the Commission to indefinitely suspend an individual who has simply submitted a license or permit application but has never actually been licensed or permitted to fight in New York. Indeed, the Commission has not demonstrated a single example of any other boxer who merely applied for a license or permit and was consequently suspended indefinitely without ever having been licensed in the first place.

Section 8917, moreover, elsewhere refers to suspensions solely in connection with licenses and licensees. See, Unconsolidated Laws § 8917(a) (any "license issued under the provisions of this act may be revoked or suspended by the commission for the reason therein stated, that the licensee has, in the judgment of the commission, been guilty of an act detrimental to the interests of boxing * * *"); § 8917(b) ("the commission may suspend or revoke a license or refuse to renew or issue a license, if it shall find that the applicant * * * has been convicted of a crime in any jurisdiction"); § 8917(c) ("The contestant shall be considered suspended from boxing by the commission and shall forfeit his license * * *. All such suspensions shall be recorded in the boxer's license * * *").

The cases cited by the Commission are easily distinguishable. It makes abundant sense that the Commission retains jurisdiction to discipline boxers who, while licensed, stood accused of misconduct and whose licenses subsequently expired. See, Matter of Constantine v. Krulewitch, 23 Misc 2d 473, 475 (Sup. Ct., NY County 1960); Matter of Wallman v. New York State Athletic Commn., 20 Misc 2d 398 (Sup. Ct. NY County 1959). As the court in Matter of Wallman v. New York State Athletic Commission explained, the Commission has "disciplinary powers beyond that of mere revocation of licenses." Matter of Wallman v. New York State Athletic Commn., 20 Misc 2d, at 399 (emphasis added). For example, the Commission can "impose financial penalties and cause civil actions to be instituted for their recovery." Id. The court emphasized that to "hold that a licensee may divest an administrative body of such punitive powers merely by giving up his license or by taking [*5]advantage of a lapse of time would be contrary to legislative intent and good administrative practice." Id. (emphasis added).

Here, in contrast, Mr. Palyani was never a licensee and was never subject to any Commission discipline. Of course the Commission has more power over licensees than boxers whose applications for a license or permit have been denied. While the Commission can deny a license to a new applicant, there is no indication that it can affirmatively impose civil penalties on one. See, Unconsolidated Laws § 8916 (any "licensed" person that violates a statutory provision, Commission rule or order "in addition to any other penalty * * * shall be liable to a civil penalty"). There is simply no authority or precedent allowing for suspension of an applicant never before licensed in New York.

The equitable doctrine of laches, moreover, will not defeat relief. The defense of laches is not available to the Commission because the relief Mr. Palyani is seeking "is not discretionary but, rather, is mandated by law." See, Matter of Meegan v. Griffin, 161 AD2d 1143, 1144 (4th Dept. 1990), lv. denied 76 NY2d 710 (1990). Additionally, Mr. Palyani, who understandably did not appreciate that his suspension was illegal, consistently attempted to have the sanction lifted by submitting to additional medical tests and communicating with the medical board. He did not slumber on his rights. Nor is there any prejudice to the Commission as a result of any delay.

In the end, it is illegal for the Commission to indefinitely suspend a new applicant, thereby precluding that individual from boxing anywhere in the United States. Based on the statutory scheme and past practice, Mr. Palyani could never have imagined that simply by applying for a license or permit in New York he risked his continued livelihood. Certainly, the Commission could have denied Mr. Palyani's application. See, Unconsolidated Laws § 8917(d) ("The commission may at any time * * * deny a boxer's license or temporary working permit for medical reasons"). It had absolutely no authority, however, to issue the suspension.

Accordingly, it is ORDERED and ADJUDGED that the petition is granted and the Commission must terminate Mr. Palyani's suspension within five business days of notice of entry of this Decision and Judgment.

This constitutes the Decision, Order and Judgment of the Court.

Dated: New York, New York

October 25, 2007

ENTER:

_________________________

Hon. Eileen Bransten