Subdivision (b)(1) designates a unique venue for Article 78 proceedings against Supreme Court Justices or County Court Judges, as in cases of mandamus or prohibition (CPLR 7803(1), (2)).Such proceedings must be brought in the Appellate Division. This provision avoids putting judges of similar rank in the awkward position of passing upon the acts of their co-equals. The rule has been held to be a matter of subject matter jurisdiction. Nolan v. Lungen, 1984, 61 N.Y.2d 788, 473 N.Y.S.2d 388, 461 N.E.2d 874. Thus, in Nolan, commencement in the Appellate Division of a prohibition proceeding solely against a district attorney was not merely a waivable defect in venue. Because it was a jurisdictional error, the proceeding was subject to dismissal for this reason alone. Similarly, an Article 78 proceeding against a Supreme Court Justice or County Court Judge may not properly be commenced in the Supreme Court. Baba v. Evans, 1995, 213 A.D.2d 248, 624 N.Y.S.2d 18 (1st Dep’t), certiorari denied, 1997, 520 U.S. 1254, 117 S.Ct. 2416, 138 L.Ed.2d 180. On the other hand, a proceeding joining a relevant nonjudicial party and a Supreme Court Justice or County Court Judge as co-respondents may properly be brought in the Appellate Division. Pollak v. Mogavero, 1985, 114 A.D.2d 640, 494 N.Y.S.2d 476 (3d Dep’t). See also Practice Commentaries on CPLR 7804, at C7804:2 and C7804:10.
A few months after Featherstone, the Court again addressed the shock-the-conscience standard in Kelly v. Safir, 2001, 96 N.Y.2d 32, 724 N.Y.S.2d 680, 747 N.E.2d 1280. There, the Court said the standard “involves consideration of whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or the harm to the agency or the public in general.” Id. at 38, 724 N.Y.S.2d at 683, 747 N.E.2d at 1283. The Court made clear that the shock-the-conscience standard requires significant judicial deference: “ ‘[G]reat leeway’ must be accorded to the [Police] Commissioner’s determinations … for it is the Commissioner, not the courts, who ‘is accountable to the public for the integrity of the Department.’ ” Id. at 38, 724 N.Y.S.2d at 683, 747 N.E.2d at 1284. See also Scahill v. Greece Central School District, 2004, 2 N.Y.3d 754, 778 N.Y.S.2d 771, 811 N.E.2d 33. Kelly also made the point that in reviewing a penalty, the court may not properly consider facts outside the administrative record.
The shock-the-conscience standard has its origins in Pell v. Board of Educ. of Union Free School Dist. No. 1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 1974, 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 841, 313 N.E.2d 321, 327. The Pell Court, in turn, relied heavily on the Appellate Division decision in Stolz v. Board of Regents of the University of the State of New York, 1957, 4 A.D.2d 361, 165 N.Y.S.2d 179 (3d Dep’t), where it was said that an administrative punishment or discipline may be set aside only if it is “so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness.” Id. at 364, 165 N.Y.S.2d at 182. The Stolzcourt reasoned that the abuse of discretion standard in the statutory predecessor of CPLR 7803(3) was intended to preclude courts from substituting their judgment on the appropriate measure of punishment for that of the administrative agency. Otherwise, “the power of administration would, to a large extent, be transferred from the administrative agency to the courts.” 4 A.D.2d at 364, 165 N.Y.S.2d at 182.
Both Featherstone and Kellyinvolved the scope of judicial review in the Appellate Division. It is a fair inference that the same shock-the-conscience standard should also apply to the Supreme Court’s review of administrative punishments and penalties. See, e.g., Zuntag v. City of New York, 2007, 18 Misc.3d 210, 853 N.Y.S.2d 469 (Sup.Ct.Richmond Co.)(permanent revocation of attorney’s visitation rights at jail facilities based on isolated incident of unknowing transfer of contraband tobacco to inmate was held to be “shocking to one’s sense of fairness”).
As a practical matter, the Supreme Court seldom passes on penalty issues. The question of excessive penalties is most frequently presented in the context of certiorari review of trial-type hearings. In such a case, the agency’s fact-findings with respect to the underlying conduct are reviewed in accordance with the substantial evidence test. See Commentary C7803:3, below. Although a certiorari proceeding is commenced in the Supreme Court, the case will be transferred to the Appellate Division for determination of the substantial evidence question. CPLR 7804(g). The only matters that Supreme Court may decide prior to transfer are “objections as could terminate the proceeding,” such as CPLR 3211-type defenses. See Practice Commentaries on CPLR 7804, at C7804:8. Petitioner’s challenge to a penalty imposed by the agency does not qualify as such an objection. Cf. Donofrio v. City of Rochester, 1988, 144 A.D.2d 1027, 534 N.Y.S.2d 630 (4th Dep’t), leave to appeal denied, 1989, 73 N.Y.2d 708, 540 N.Y.S.2d 1003, 538 N.E.2d 355. Thus, the penalty issue will be transferred to the Appellate Division where it will be reviewed in the first instance along with the substantial evidence question. See, e.g., Diefenthaler v. Klein, 2006, 27 A.D.3d 347, 811 N.Y.S.2d 653 (1st Dep’t); Dewey v. Powley, 1999, 261 A.D.2d 901, 902, 690 N.Y.S.2d 365, 366 (4th Dep’t)