Opinion
01-21-2016
In the Matter of Anthony CASAMASSIMA, Petitioner, v. NEW YORK STATE DEPARTMENT OF HEALTH, ADMINISTRATIVE REVIEW BOARD FOR PROFESSIONAL MEDICAL CONDUCT, Respondent.
Anthony Casamassima, Kosciusko, Mississippi, petitioner pro se. Eric T. Schneiderman, Attorney General, New York City (Todd A. Spiegelman of counsel), for respondent.
Anthony Casamassima, Kosciusko, Mississippi, petitioner pro se.
Eric T. Schneiderman, Attorney General, New York City (Todd A. Spiegelman of counsel), for respondent.
Before: McCARTHY, J.P., EGAN JR., ROSE, LYNCH and CLARK, JJ.
McCARTHY, J.P.Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Public Health Law § 230–c[5] ) to review a determination of respondent revoking petitioner's license to practice medicine in New York.
Petitioner is a physician who was licensed to practice medicine in New York in 1986. In October 2010, petitioner was arraigned on criminal charges stemming from allegations that, when he was acting in his separate professional capacity as an attorney, he stole funds from an escrow account. In October 2011, he submitted an application to renew his medical license to the State Education Department and, on that application, he answered "no" to the question, "Since your last registration application ... [a]re criminal charges pending against you in any court?" In January 2012, petitioner pleaded guilty to grand larceny in the third degree, a felony, and petit larceny, a misdemeanor, and was sentenced to five years of probation and ordered to pay certain restitution. As a consequence, the Bureau of Professional Medical Conduct charged petitioner with practicing the profession fraudulently and being convicted of committing an act constituting a crime in New York (see Education Law § 6530[2], [9][a][i] ). After a hearing, the Hearing Committee of the State Board for Professional Medical Conduct determined that petitioner was guilty of both charges and revoked petitioner's license. Upon petitioner's administrative appeal, respondent affirmed both the determination of professional misconduct and the revocation of his license. Petitioner commenced this CPLR article 78 proceeding in this Court to vacate respondent's determination.
Petitioner has since been disbarred (Matter of Casamassima, 84 A.D.3d 67, 68, 921 N.Y.S.2d 125 [2011] ).
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We disagree with petitioner's assertion that the Hearing Committee's evidentiary rulings and hearing format deprived him of due process. Although petitioner's wife was precluded from testifying, such preclusion took place after petitioner acknowledged that he wanted his wife to testify for the sole purpose of confirming portions of his testimony regarding his motive for stealing funds from the escrow account. The exclusion of cumulative testimony is not violative of due process (see e.g. Matter of Canfield v. McCree, 90 A.D.3d 1653, 1654, 935 N.Y.S.2d 812 [2011] ; Cor Can. Rd. Co., LLC v. Dunn & Sgromo Engrs., PLLC, 34 A.D.3d 1364, 1365, 825 N.Y.S.2d 601 [2006] ). Further, contrary to petitioner's contention that the proceeding was so rushed as to merit reversal, our review of the record reveals that petitioner was provided ample opportunity to present evidence and the Hearing Committee's efforts to "avoid extended testimony [and evidentiary submissions] about peripheral, and only marginally probative[ ] matters," did not infuse the proceeding with unfairness (Matter of Amato v. State of N.Y. Dept. of Health, 229 A.D.2d 752, 754, 645 N.Y.S.2d 600 [1996], lv. denied 89 N.Y.2d 801, 653 N.Y.S.2d 278, 675 N.E.2d 1231 [1996] ; see Matter of Hatfield v. Department of Health of State of N.Y., 245 A.D.2d 703, 705, 665 N.Y.S.2d 755 [1997] ).
Turning to the penalty, this Court will not reverse a penalty imposed by respondent unless that penalty is "so disproportionate to the offense that it shocks one's sense of fairness" (Matter of Bargellini v. New York State Dept. of Health, 129 A.D.3d 1226, 1229, 10 N.Y.S.3d 732 [2015] [internal quotation marks and citation omitted], lv. denied 26 N.Y.3d 905, 2015 WL 5445615 [2015] ; 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, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ). As petitioner acknowledged in his testimony, in his previous work as an attorney, he stole more than $40,000 from his clients. Petitioner further explained that, on his reapplication for his medical license, he withheld the information about the pending criminal charges related to such conduct. Although petitioner testified that he did not intend to deceive the Education Department by representing that there were not criminal charges pending against him when, in fact, there were criminal charges pending against him, respondent found such testimony to be incredible and concluded that petitioner had engaged in fraudulent practice (see generally Matter of Bargellini v. New
York State Dept. of Health, 129 A.D.3d at 1228, 10 N.Y.S.3d 732 ). Accordingly, respondent found that petitioner had engaged in a pattern of misconduct by stealing clients' money and then lying about the criminal proceedings related to such conduct. Notably, the victims of petitioner's aforementioned crimes, his clients, were people to whom petitioner owed a professional duty (compare Matter of Sawangkao v. New York State Bd. for Professional Med. Conduct, 12 A.D.3d 735, 737, 783 N.Y.S.2d 716 [2004], lv. denied 4 N.Y.3d 704, 792 N.Y.S.2d 897, 825 N.E.2d 1092 [2005] ). The penalty of licence revocation for such acts is not so disproportionate as to " shock one's sense of fairness" (Matter of Zahl v. Daines, 63 A.D.3d 1314, 1314–1316, 880 N.Y.S.2d 394 [2009] [internal quotation marks and citations omitted]; see Matter of Sawangkao v. New York State Bd. for Professional Med. Conduct, 12 A.D.3d at 735–737, 783 N.Y.S.2d 716 ). Petitioner's remaining contentions are also without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
EGAN JR., ROSE, LYNCH and CLARK, JJ., concur.