Matter of Kim v. Board of Regents of the State of New York , 4 N.Y.S.3d 369 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: February 26, 2015 518148
________________________________
In the Matter of NIGEL JASON
KIM,
Petitioner,
v MEMORANDUM AND JUDGMENT
BOARD OF REGENTS OF THE STATE
OF NEW YORK et al.,
Respondents.
________________________________
Calendar Date: January 13, 2015
Before: Peters, P.J., Rose, Egan Jr. and Clark, JJ.
__________
Law Office of Michael S. Pollok, Red Hook (Michael S.
Pollok of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, New York City
(Bradford S. Glick of counsel), for respondents.
__________
Egan Jr., J.
Proceeding pursuant to CPLR article 78 (initiated in this
Court pursuant to Education Law § 6510 [5]) to review a
determination of respondent Board of Regents which suspended
petitioner's license to practice dentistry in New York for two
years.
In 2005, petitioner, a recently licensed dentist, began
working at a dental clinic in Brooklyn; many of the clinic's
patients were insured through New York's Medicaid program.
Thereafter, in 2010, petitioner was indicted and charged with
grand larceny in the first degree, insurance fraud in the first
degree, engaging in a medical assistance provider prohibited
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practice in violation of Social Services Law § 366-d (2) (b) and
(4) and conspiracy in the fourth degree. The charges stemmed
from petitioner's participation in a scheme to defraud the
Medicaid program by utilizing paid recruiters, known as "flyer
guys," to solicit patients to receive dental services at the
clinic in exchange for some form of remuneration and by entering
into an illegal fee-splitting arrangement with non-dentists in
the clinic's practice. Pursuant to a written plea agreement,
petitioner pleaded guilty to grand larceny in the second degree
and violating Social Services Law § 366-d (2) (b) and (4) with
the understanding that, if he cooperated with the Attorney
General in the prosecution of his codefendants, he would be
permitted to withdraw his plea as to the larceny charge.
Following petitioner's compliance with the terms of this
agreement, petitioner's plea to grand larceny in the second
degree was vacated, and he thereafter was sentenced – with
respect to his conviction under the Social Services Law – to five
years of probation and ordered to pay restitution in the amount
of $200,000.
As a result of this conviction, respondent Office of the
Professions, a division of respondent Department of Education,
charged petitioner with professional misconduct pursuant to
Education Law § 6509 (5) (a) (i). Following an expedited
hearing, respondent Regents Review Committee found petitioner
guilty of professional misconduct and recommended a two-year
suspension of petitioner's license to practice dentistry in New
York. Respondent Board of Regents adopted those findings and
recommendation and suspended petitioner's license for two years.
Petitioner thereafter commenced this CPLR article 78 proceeding
to challenge that determination.1
The sole argument raised by petitioner upon review is
addressed to the severity of the penalty imposed. Specifically,
petitioner contends that the underlying suspension fails to take
into account, among other things, his cooperation in assisting
the Attorney General in prosecuting his codefendants, his stated
1
This Court denied petitioner's subsequent motion for a
stay pending resolution of this proceeding.
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remorse, his status as a new dentist in an established practice
and his overall lack of awareness of the fact that the conduct in
which he engaged actually constituted a crime. Petitioner
further contends that the penalty imposed is disproportionate to
that meted out to his codefendants and other similarly situated
individuals.
"The standard of review [that] we must accord to penalty
determinations in proceedings of this nature is highly
deferential" and, therefore, the administrative penalty imposed
will not be disturbed unless it is "so incommensurate with the
[underlying] offense as to shock one's sense of fairness" (Matter
of Singh v New York State Dept. of Health Bd. of Professional
Med. Conduct, 74 AD3d 1391, 1393 [2010] [internal quotation marks
and citations omitted]; see Matter of Yohanan v King, 113 AD3d
971, 972 [2014], appeal dismissed 23 NY3d 953 [2014], lv denied
24 NY3d 902 [2014]; Matter of Weeks v State Educ.
Department/Univ. of the State of N.Y., 113 AD3d 944, 944 [2014];
Matter of Aptaker v Administrative Review Bd. for Professional
Med. Conduct, 60 AD3d 1160, 1163 [2009], lv denied 12 NY3d 713
[2009]). Here, the Board expressly took into consideration many
of the mitigating factors upon which petitioner now relies,
including petitioner's cooperation with the Attorney General and
his demonstrated remorse, as well as the fact that his conduct
did not directly implicate patient care, that he did not submit
claims for work not actually performed, that he was not convicted
of larceny or fraud, that he is paying restitution in an amount
greater than many of his codefendants and that his misconduct
consisted solely of an illegal fee-splitting arrangement and
"making small improper payments to patients." Although
petitioner testified – and continues to emphasize – that he was
unaware that such activities were criminal in nature, he readily
acknowledged at the hearing that he was aware that "flyer guys"
were retained to "lure" Medicaid patients into the clinic's
practice (often by utilizing small cash payments) and that he
knew that this activity "was wrong" and did not "seem[] kosher."
Nonetheless, petitioner turned a blind eye to this activity for
approximately four years, during which time he reaped the
financial benefits of being employed at the clinic. In light of
petitioner's misconduct, and taking into consideration the
mitigating factors cited by petitioner, the gravity of the
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underlying offense and the need to fashion a penalty that serves
as a deterrent to other health professionals, we cannot say that
the two-year suspension imposed by the Board is so
disproportionate to petitioner's offense as to shock one's sense
of fairness. To the extent that petitioner contends that either
his codefendants or other unrelated health professionals have
received lesser penalties for similar misconduct, we need note
only that the "penalties imposed in other [disciplinary] cases
are irrelevant because each case must be judged on its own
peculiar facts and circumstances" (Matter of Singh v New York
State Dept. of Health Bd. of Professional Med. Conduct, 74 AD3d
at 1394 [internal quotation marks and citations omitted]; see
Matter of Yohanan v King, 113 AD3d at 972; Matter of Genco v
Mills, 28 AD3d 966, 967 [2006]). Accordingly, the underlying
determination is confirmed.
Peters, P.J., Rose and Clark, JJ., concur.
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court