In the Matter of Ajay Baman v. State

• Decision Date: 16 June 2011
• Citation: 85 A.D.3d 1400,925 N.Y.S.2d 710,2011 N.Y. Slip Op. 05149
• Parties: In the Matter of Ajay BAMAN, Also Known as Ajaykumar I. Baman, Petitioner,v.STATE of New York et al., Respondents.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1400

925 N.Y.S.2d 710

2011 N.Y. Slip Op. 05149

In the Matter of Ajay BAMAN, Also Known as Ajaykumar I. Baman, Petitioner,

v.STATE of New York et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

June 16, 2011.

Devereaux Baumgarten, New York City (Sidney Baumgarten of counsel), for petitioner.Eric T. Schneiderman, Attorney General, New York City (James M. Hershler of counsel), for respondents.Before: MERCURE, J.P., ROSE, LAHTINEN, KAVANAGH and McCARTHY, JJ.ROSE, J.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Education Law § 6510[5] ) to review a determination of respondent Board of Regents which revoked petitioner's license to practice dentistry in New York.

Petitioner pleaded guilty to the crime of grand larceny in the third degree based on allegations that, as a practicing dentist, he had committed Medicaid fraud over a number of years. After he paid $552,126.64 in restitution, he was sentenced to a five-year term of probation. Based on the conviction, respondent Board of Regents (hereinafter respondent) ultimately revoked petitioner's license to practice dentistry ( see Education Law § 6509[5][a] [i] ). This CPLR article 78 proceeding ensued.

Petitioner first contends that there is no basis for respondent's finding that he did not accept full responsibility for his wrongdoing. We cannot agree. The record includes the transcript of petitioner's plea allocution, during which Supreme Court (Berkman, J.) repeatedly expressed an unwillingness to accept petitioner's plea in light of his failure to acknowledge that the alleged crime was more than a clerical error. Similarly, in petitioner's testimony before the Regents Review Committee, his acknowledgment of deliberate action was equivocal and he again raised the suggestion that his conviction was due in part to a clerical error. Inasmuch as there is substantial evidence to support respondent's factual finding, we will not disturb it ( see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 230–231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974]; Matter of Ahneman v. Board of Regents of Univ. of State of N.Y., 55 A.D.3d 1177, 1178, 865 N.Y.S.2d 781 [2008] ).

Nor do we find merit to petitioner's claim that respondent failed to comply with Correction Law article 23–A or Executive Law § 296(15). Correction Law article 23–A was designed to eliminate bias against ex-offenders in obtaining employment or a license ( see Matter of Bonacorsa v. Van Lindt, 71 N.Y.2d 605, 611, 528 N.Y.S.2d 519, 523 N.E.2d 806 [1988] ). It applies to convictions that predate an application for a license and has “no bearing on disciplinary proceedings against persons already licensed” ( Matter of Mosner v. Ambach, 66 A.D.2d 912, 912, 410 N.Y.S.2d 937 [1978]; see Correction Law § 751; Matter of Pietranico v. Ambach, 82 A.D.2d 625, 626, 442 N.Y.S.2d 827 [1981], affd. 55 N.Y.2d 861, 447 N.Y.S.2d 924, 432 N.E.2d 796 [1982] ). Executive Law § 296(15), which prohibits governmental entities from denying a license or employment in violation of Correction Law article 23–A, is likewise inapplicable. Petitioner's reliance on the doctrine of equitable estoppel is also misplaced, as it “cannot be invoked against a governmental agency to prevent it from discharging its statutory duties” ( Matter of Schorr v. New York City Dept. of Hous. Preserv. & Dev., 10 N.Y.3d 776, 779, 857 N.Y.S.2d 1, 886 N.E.2d 762 [2008] [internal quotation marks and citation omitted]; see Matter of Dagvadorj v. DeFleur, 70 A.D.3d 1275, 1280, 896 N.Y.S.2d 211 [2010], lv. denied 14 N.Y.3d 712, 2010 WL 2196573 [2010] ).

As for the penalty, “[w]e have repeatedly upheld license revocation when a professional violates the public trust by engaging in criminal conduct that defrauds the Medicaid system” ( Matter of Genco v....