Matter of Casamassima v. New York State Department of Health, Administrative Review Board for Professional Medical Conduct ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 21, 2016 519591
________________________________
In the Matter of ANTHONY
CASAMASSIMA,
Petitioner,
v MEMORANDUM AND JUDGMENT
NEW YORK STATE DEPARTMENT OF
HEALTH, ADMINISTRATIVE
REVIEW BOARD FOR
PROFESSIONAL MEDICAL
CONDUCT,
Respondent.
________________________________
Calendar Date: November 16, 2015
Before: McCarthy, J.P., Egan Jr., Rose, Lynch and Clark, JJ.
__________
Anthony Casamassima, Kosciusko, Mississippi, petitioner pro
se.
Eric T. Schneiderman, Attorney General, New York City (Todd
A. Spiegelman of counsel), for respondent.
__________
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
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attorney, he stole funds from an escrow account.1 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.
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 AD3d 1653, 1654 [2011]; Cor Can.
Rd. Co., LLC v Dunn & Sgromo Engrs., PLLC, 34 AD3d 1364, 1365
[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
1
Petitioner has since been disbarred (Matter of
Casamassima, 84 AD3d 67, 68 [2011]).
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infuse the proceeding with unfairness (Matter of Amato v State of
N.Y. Dept. of Health, 229 AD2d 752, 754 [1996], lv denied 89 NY2d
801 [1996]; see Matter of Hatfield v Department of Health of
State of N.Y., 245 AD2d 703, 705 [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 AD3d 1226, 1229 [2015] [internal quotation marks and citation
omitted], lv denied 26 NY3d 905 [2015]; see Matter of Pell v
Board of Educ. of Union Free School Dist. No. 1 of Towns of
Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233
[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 AD3d at 1228). 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 AD3d 735, 737 [2004], lv denied 4 NY3d 704 [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 AD3d 1314, 1314-1316 [2009] [internal quotation
marks and citations omitted]; see Matter of Sawangkao v New York
State Bd. for Professional Med. Conduct, 12 AD3d at 735-737).
Petitioner's remaining contentions are also without merit.
Egan Jr., Rose, Lynch and Clark, JJ., concur.
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ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court