Wolfson v. De Buono

• Citation: 681 N.Y.S.2d 878
• Parties: 1998 N.Y. Slip Op. 11,397 In the Matter of Stanley WOLFSON, Petitioner, v. Barbara A. DE BUONO, as Commissioner of the New York State Department of Health, et al., Respondents.
• Decision Date: 24 December 1998
• Court: New York Supreme Court — Appellate Division

Page 878

681 N.Y.S.2d 878

1998 N.Y. Slip Op. 11,397

In the Matter of Stanley WOLFSON, Petitioner, v. Barbara A. DE BUONO, as Commissioner of the New York State Department of Health, et al., Respondents.

Supreme Court, Appellate Division Third Department.

Dec. 24, 1998.

Arent, Fox, Kinter, Plotkin & Kahn PLLC (Steven Kimelman of counsel), New York City, for petitioner.

Dennis C. Vacco, Attorney-General (William B. Jaffe of counsel), New York City, for respondents.

Before CARDONA, P.J., MERCURE, WHITE, SPAIN and GRAFFEO, JJ.

GRAFFEO, 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 which revoked petitioner's license to practice medicine in New York.

Petitioner, a radiologist, was charged by respondent Bureau of Professional Medical Conduct (hereinafter the BPMC) with professional misconduct for violations of Education Law § 6530(2), (20) and (21). The charges alleged that from January 1, 1988 through February 1, 1990 petitioner submitted false claims to the Medicaid program for reimbursement for ultrasound services. Prior to the BPMC's charges in May 1995, petitioner had pleaded guilty to one count of grand larceny in the second degree for defrauding the Medicaid system of over $50,000. Petitioner was later sentenced to 90 days' incarceration and ordered to pay restitution in the amount of $350,000. Supreme Court, however, stayed the execution of his sentence to allow him to continue working in order to make periodic restitution payments, provided he did not render Medicaid services.

In August 1997, an administrative fact-finding hearing was conducted before a Hearing Committee of the State Board for Professional Medical Conduct. The BPMC introduced a certified copy of the plea allocution, without objection, in which petitioner pleaded guilty to grand larceny in the second degree. For purposes of the hearing, the parties stipulated to the facts, including an admission that petitioner defrauded the Medicaid system. The Hearing Committee issued its decision in October 1997 and ordered an immediate revocation of petitioner's license to practice medicine in New York. Thereafter, petitioner commenced this CPLR article 78 proceeding to review the Hearing Committee's determination.

Petitioner does not challenge the Hearing Committee's determination to revoke his professional license, but argues that the penalty should have been suspended to enable him to pay the balance of restitution in connection with his criminal case. We disagree. An administrative penalty of license revocation may be set aside only if the punishment is so disproportionate to the offense " ' * * * as to be shocking to one's sense of fairness' " (Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321, quoting Matter of Stolz v. Board of Regents, 4 A.D.2d 361, 364, 165 N.Y.S.2d 179; see, Matter of Chua v. Chassin, 215 A.D.2d 953, 627 N.Y.S.2d 152, lv. denied 86 N.Y.2d 708, 634 N.Y.S.2d 441, 658 N.E.2d 219; Matter of Adler v. Bureau of Professional Med. Conduct, 211 A.D.2d 990, 622 N.Y.S.2d 609). Here, in light of petitioner's admission that he fraudulently billed the Medicaid system, thereby violating the public trust, we decline to disturb the penalty rendered (see, Matter of Teruel v. De Buono, 244 A.D.2d 710, 664 N.Y.S.2d 381; Matter of Kabnick v. Chassin, 223 A.D.2d 935, 636 N.Y.S.2d 920, affd. 89 N.Y.2d 828, 652 N.Y.S.2d 722, 675 N.E.2d 457; Matter of Sokol v. New York State Dept. of...