Becker v. De Buono
| Decision Date | 08 May 1997 |
| Citation | 657 N.Y.S.2d 471,239 A.D.2d 664 |
| Parties | In the Matter of Steven I. BECKER, Petitioner, v. Barbara DE BUONO, as Commissioner of the New York State Department of Health, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Nathan L. Dembin & Associates (Jeffrey Berkowitz, of counsel), New York City, for petitioner.
Dennis C. Vacco, Attorney-General (Raymond J. Foley, of counsel), New York City, for respondents.
Before CARDONA, P.J., and CASEY, PETERS, SPAIN and CARPINELLO, JJ.
Proceeding pursuant to CPLR article 78 () to review a determination of the Administrative Review Board for Professional Medical Conduct which revoked petitioner's license to practice medicine in New York.
Petitioner, a physician specializing in vascular surgery, holds a license to practice medicine in both New Jersey and New York. Petitioner was subject to disciplinary action in New Jersey, which involved taking X rays that allegedly deviated from accepted standards and failing to disclose his denial of privileges at one hospital and also that he was the subject of an inquiry concerning fee disputes. This New Jersey proceeding terminated in a consent order which required petitioner to complete a course in X-ray technique and 12 months of monitoring, which petitioner did successfully.
As a result of the New Jersey consent order, a referral proceeding was initiated by respondent Bureau of Professional Medical Conduct (hereinafter BPMC) in New York pursuant to Education Law § 6530(9)(d). A Hearing Committee of the State Board for Professional Medical Conduct (hereinafter Hearing Committee) determined that the underlying conduct of the consent order would, if committed in New York, constitute misconduct in violation of Education Law § 6530(3) () and Education Law § 6530(21) (). The Hearing Committee imposed a two-year stayed suspension with two years of X-ray monitoring. Both petitioner and BPMC appealed this determination to the Administrative Review Board for Professional Medical Conduct (hereinafter ARB), which changed the penalty to revocation of petitioner's New York license, prompting the commencement of this CPLR article 78 proceeding by petitioner.
Initially we find that, as the evidence and sworn testimony taken pursuant to a Public Health Law § 230(10)(p) expedited proceeding is "strictly limited" to that "relating to the nature and severity of the penalty", petitioner was never given the opportunity to raise before the Hearing Committee the issue of the inapplicability of collateral estoppel. Petitioner did, however, raise this issue at his first available opportunity--before the ARB. As such, we find, contrary to respondents' contention, that this issue has not been waived.
Significantly, petitioner's consent order in...
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...effect because invocation of the doctrine of collateral estoppel would be unfair in such circumstances ( see Matter of Becker v. DeBuono, 239 A.D.2d 664, 665, 657 N.Y.S.2d 471 [1997]; see also Matter of Herberman v. Novello, 280 A.D.2d 814, 816, 720 N.Y.S.2d 626 [2001]; Matter of Azam Khan ......
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Lankheim v. Bd. of Registration In Nursing.
...resolution of disciplinary charges by agreement in another State). To the extent that Lankheim relies on Becker v. DeBuono, 239 A.D.2d 664, 657 N.Y.S.2d 471 (N.Y.1997), and Urella v. State Med. Bd., 118 Ohio App.3d 555, 693 N.E.2d 846 (1997), to argue the importance of her not having admitt......
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Ramirez v. Board of Registration in Medicine., SJC-08896 (Mass. 4/16/2004)
...disciplinary statute required board "to prove the underlying basis" for foreign State's disciplinary action). But see Becker v. DeBuono, 239 A.D.2d 664 (N.Y. 1997) (where consent order contained no admission of guilt or wrongdoing, and further contained total denial of wrongdoing, collatera......
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Ikramuddin v. De Buono
...on Matter of Halyalkar v. Board of Regents of State of N.Y., 72 N.Y.2d 261, 532 N.Y.S.2d 85, 527 N.E.2d 1222, and Matter of Becker v. De Buono, 239 A.D.2d 664, 657 N.Y.S.2d 471, is misplaced. Significant factual differences and legal consequences distinguish Halyalkar and Becker from the pr......