Justice Nancy Bannon


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Mother of infant petitioner sought an Article 78 review of a determination of the Department of Financial Services (DFS) denying an application for enrollment in Medical Indemnity Fund (MIF) challenging the determination as arbitrary, and affected by an error of law. The court denied respondents’ cross-motion for dismissal, directing Commissioner of DFS to enroll petitioner in the MIF. A Supreme Court previously found and entered an amended infant’s compromise after settling a medical malpractice action by petitioner ordering him to be found to have sustained birth-related neurological injury as a result of alleged medical malpractice. The court found DFS’s decision arbitrary as it ruled petitioner was not eligible for enrollment in the MIF, concluding petitioner’s injuries were not sustained during mother’s “delivery admission” to a hospital, but were sustained prenatally and not during labor and delivery—there was nothing in the administrative record to support such conclusion. Also, DFS’s determination was affected by an error of law as its interpretation of the statute conflicted with rules of statutory interpretation, thus, not entitled to deference. Hence the petition was granted.