Bursztyn v. NovelloBursztyn v. Novello
Petitioner has been licensed to practice medicine in New York since 1981. In 2005, the Maryland State Board of Physicians upheld the denial of his application for a license to practice medicine in that state because he willfully made false representations on the application. Thereafter, the New York State Board for Professional Medical Conduct commenced a referral proceeding against him alleging that he violated
Petitioner argues that he was prejudiced by the exclusion of certain evidence in the referral proceeding, namely, the transcript and Administrative Law Judge‘s decision from the Maryland proceeding. In particular, petitioner claims that the Hearing Committee needed these items to fully appreciate the quality of the evidence adduced against him there. We are unpersuaded. The only relevant inquiry in this referral proceeding was the appropriate penalty for petitioner having been found guilty of willfully making false representations in Maryland. To
Next, petitioner argues that the penalty imposed against him was arbitrary, capricious and unsupported by the record. To be sure, the proper standard to be applied by this Court in reviewing the propriety of physician discipline is “whether the penalty imposed is so incommensurate with the offense as to shock one‘s sense of fairness and each case is to be judged according to its own facts and circumstances” (Matter of Kagali v New York State Bd. for Professional Med. Conduct, 20 AD3d 720, 722 [2005] [internal quotation marks and citations omitted]). Here, we are unable to conclude that a one-year suspension of petitioner‘s license for willfully making false misstatements on his Maryland application shocks one‘s sense of fairness (compare Matter of Bottros v DeBuono, 256 AD2d 1034, 1036 [1998]; Matter of Sarfo v DeBuono, 235 AD2d 938, 940 [1997]). To this end, we note that petitioner‘s unwillingness in this proceeding to acknowledge his wrongful conduct in Maryland was a factor appropriately relied upon by the Hearing Committee in assessing this penalty (see Matter of Zharov v New York State Dept. of Health, 4 AD3d 580, 581 [2004]). While petitioner claims that his one-year suspension will have a deleterious impact on the rural hospital and community in which he practices, the Hearing Committee explicitly took this factor into consideration (see Matter of Margini v DeBuono, 255 AD2d 639, 640 [1998]), but nevertheless found that his refusal to take responsibility for his prior wrongful conduct justified a severe penalty (see Matter of Zharov v New York State Dept. of Health, supra).
Crew III, J.P., Spain, Mugglin and Kane, JJ., concur. Adjudged