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Falcone v. New York State Education Department

50 N.Y.2d 854 Court N.Y. Decision date 1980-06-03 English

Contents

Majority

p. 854
In the Matter of Augustus Falcone, Respondent, v New York State Education Department et al., Appellants.
Argued April 23, 1980;
decided June 3, 1980
p. 855
APPEARANCES OF COUNSEL
Robert Abrams, Attorney-General (John J. O’Grady, Shirley Adelson Siegel and William L. Wood, Jr., of counsel), for appellants.
Thomas Láveme and Mark C. Kriss for respondent.

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed,

p. 856
with costs, and the determination of the Board of Regents and the order of the Commissioner of Education reinstated.

Petitioner, a licensed optometrist, allowed an ophthalmic dispenser to fit contact lenses under his supervision in violation of section 7121 of the Education Law. As a result, petitioner was found guilty of two charges of professional misconduct, to wit: (1) permitting, aiding or abetting an unlicensed person to perform activities requiring a license (Education Law, § 6509, subd [7]); and (2) unprofessional conduct (Education Law, § 6509, subd [9]).

In light of the finding that petitioner carried on his practice of optometry in clear contravention of existing law, we cannot say that the penalty imposed by the Board of Regents — a 6-month period of actual suspension followed by an 18-month period of probation — is so disproportionate to petitioner’s offense as to mandate modification. (Schaubman v Blum, 49 NY2d 375 ; Matter of Pell v Board of Educ., 34 NY2d 222 .)

Accordingly, the Appellate Division erred in modifying the penalty imposed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Judgment reversed, etc.

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