Matter of Kulik v. Zucker , 40 N.Y.S.3d 658 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 3, 2016 520837
________________________________
In the Matter of PAVEL KULIK,
Petitioner,
v MEMORANDUM AND JUDGMENT
HOWARD A. ZUCKER, as
Commissioner of Health,
Respondent.
________________________________
Calendar Date: September 6, 2016
Before: Peters, P.J., McCarthy, Lynch, Rose and Clark, JJ.
__________
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.
__________
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
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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
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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 AD3d 1257, 1261
[2011] [internal quotation marks and citations omitted], lv
denied 19 NY3d 801 [2012]; see Matter of Eisenberg v Daines, 99
AD3d 1117, 1120 [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 AD3d 927, 930 [2007], lv denied 10
NY3d 701 [2008]; see e.g. Matter of Saldanha v DeBuono, 256 AD2d
935, 935-936 [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
AD3d 1251, 1253 [2007]; see Matter of Glassman v Commissioner of
Dept. of Health of State of N.Y., 208 AD2d 1060, 1061-1062
[1994], lv denied 85 NY2d 801 [1995]).
At the hearing, six witnesses testified to petitioner's
honesty and moral fitness to practice medicine. However, one was
not aware of petitioner's conviction and the others did not add
relevant testimony. This was petitioner's second time before the
State Board for Professional Medical Conduct, and the Hearing
Committee found that, despite the fact that his guilty plea
occurred while he was negotiating the consent order, he
intentionally concealed this information. Moreover, all of the
subsequent misrepresentations occurred while petitioner was
serving his three-year term of probation. In our view, the
foregoing facts, coupled with the undisputed series of fraudulent
actions committed by petitioner, establish that the penalty of
license revocation was not so disproportionate to the offense as
to shock one's sense of fairness (see Matter of Dolin v State Bd.
for Professional Med. Conduct, 274 AD2d 862, 863-864 [2000], lv
denied 95 NY2d 770 [2000]; Matter of Saldanha v DeBuono, 256 AD2d
at 936; Matter of Glassman v Commissioner of Dept. of Health of
State of N.Y., 208 AD2d at 1061-1062). Finally, we note that the
cases relied upon by petitioner involve fewer instances of
fraudulent conduct (see Matter of Bottros v DeBuono, 256 AD2d
1034, 1034-1035 [1998]) or mitigating circumstances not present
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here (see Matter of Addei v State Bd. for Professional Med.
Conduct, 278 AD2d 551, 553 [2000]).
Peters, P.J., McCarthy, Lynch and Clark, JJ., concur.
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court