Kulik v. Zucker

• Decision Date: 03 November 2016
• Citation: 40 N.Y.S.3d 658,144 A.D.3d 1217,2016 N.Y. Slip Op. 07242
• Parties: In the Matter of Pavel KULIK, Petitioner, v. Howard A. ZUCKER, as Commissioner of Health, Respondent.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1217

40 N.Y.S.3d 658

2016 N.Y. Slip Op. 07242

In the Matter of Pavel KULIK, Petitioner,

v.Howard A. ZUCKER, as Commissioner of Health, Respondent.

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

Nov. 3, 2016.

Wood & Scher, White Plains (Anthony Z. Scher of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, New York City (Bradford S. Glick of counsel), for respondent.

Before: PETERS, P.J., McCARTHY, LYNCH, ROSE and CLARK, JJ.

ROSE, J.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Public Health Law § 230–c[5] ) to review a determination of the Hearing Committee of the State Board for Professional Medical Conduct revoking petitioner's license to practice medicine in New York.

In 2009, the Bureau of Professional Medical Conduct charged petitioner, a physician licensed to practice medicine in New York, with three specifications of professional misconduct alleging that he, among other things, committed negligence on more than one occasion, ordered excessive tests and failed to maintain records. In satisfaction of these charges, petitioner entered into a consent agreement in which he acknowledged that he could not successfully defend at least one of the alleged acts of professional misconduct and agreed to, among other things, a censure, a reprimand and a three-year period of probation. Shortly before the consent order became effective, petitioner pleaded guilty to driving while ability impaired by drugs, which ultimately gave rise to 14 additional specifications of professional misconduct based upon allegations that he had committed an act constituting a crime in New York (see Education Law § 6530[9][a][i] ), violated a term of probation (see Education Law § 6530[29] ), practiced medicine fraudulently (see Education Law § 6530[2] ), filed a false report (see Education Law § 6530 [21] ) and engaged in conduct evidencing moral unfitness to practice medicine (see Education Law § 6530[20] ).

Following a hearing before the Hearing Committee of the State Board for Professional Medical Conduct, all 14 specifications of professional misconduct were sustained. In reaching its determination, the Hearing Committee found that petitioner intentionally misrepresented or concealed on a registration renewal form the fact that he had criminal charges pending against him—including the charge of driving while ability impaired. Similarly, the Hearing Committee also found that petitioner intentionally misrepresented or concealed on another renewal form and two separate hospital reappointment forms his subsequent guilty plea. Petitioner admitted to these four misrepresentations at the hearing, but maintained that they were not intentional because he genuinely, albeit mistakenly, believed that driving while ability impaired by drugs was a minor traffic infraction, as opposed to a misdemeanor crime. The Hearing Committee, however, rejected petitioner's testimony as incredible and found that each misrepresentation or concealment was “a knowing, deliberate, and intentional act” aimed at avoiding the consequences that would have arisen if he had disclosed the initial charges or subsequent misdemeanor conviction. As for the penalty, the Hearing Committee revoked petitioner's license, finding that he showed a lack of remorse and a disregard for the seriousness of his actions. Petitioner then commenced this CPLR article 78 proceeding.

Petitioner's sole contention is that the penalty of license revocation is excessive and harsh in light of the evidence of his good character and the fact that the misrepresentations did not impact patient care. We disagree. A penalty imposed by the Hearing Committee will only be disturbed when it is “so incommensurate with the offense as to shock one's sense of fairness” (Matter of Josifidis v. Daines, 89 A.D.3d 1257, 1261, 932 N.Y.S.2d 258 [2011] [internal quotation marks and citations omitted], lv. denied 19 N.Y.3d 801, 2012 WL 1504323 [2012] ; see Matter of Eisenberg v. Daines, 99 A.D.3d 1117, 1120, 952 N.Y.S.2d 790 [2012] ). We note that “[t]he fact that patient care was not implicated does not preclude revocation of [a] petitioner's license” (Matter of Ross v. State Bd. for Professional Med. Conduct, 45 A.D.3d 927, 930, 845 N.Y.S.2d 162 [2007], lv. denied 10 N.Y.3d 701, 853 N.Y.S.2d 542, 883 N.E.2d 369 [2008] ; see e.g. Matter of Saldanha v. DeBuono, 256 A.D.2d 935, 935–936, 681 N.Y.S.2d 874 [1998] ), and evidence of fraudulent conduct, standing alone, is “sufficient to uphold the penalty of revocation” (Matter of Ostad v. New York State Dept. of Health, 40 A.D.3d 1251, 1253, 837 N.Y.S.2d 364 [2007] ; see Matter of Glassman v. Commissioner of Dept. of Health of State of N.Y., 208 A.D.2d 1060, 1061–1062, 617 N.Y.S.2d 413 [1994], lv. denied 85...