                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 11, 2015                     517885
________________________________

In the Matter of JOSEPH
   BARGELLINI,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

NEW YORK STATE DEPARTMENT OF
   HEALTH et al.,
                    Respondents.
________________________________


Calendar Date:   April 22, 2015

Before:   Lahtinen, J.P., Garry, Lynch and Clark, JJ.

                             __________


      Kilgannon & Kilgannon, LLP, Mineola (Timothy Kilgannon of
counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, New York City (Todd
Spiegelman of counsel), for respondents.

                             __________


Lynch, 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 Administrative Review Board for Professional
Medical Conduct which, among other things, suspended petitioner's
license to pratice medicine in New York.

      Petitioner, a licensed psychiatrist, was charged by the
Bureau of Professional Medical Conduct (hereinafter BPMC) with
eight specifications of professional misconduct as defined by
Education Law § 6530. As relevant herein, the charges resulted
from certain statements that petitioner made while treating a
patient and from his failure to report on a job application that
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he had been terminated from jobs that he held with two other
medical facilities. After conducting a hearing, the Hearing
Committee of the State Board for Professional Medical Conduct
determined that petitioner was guilty of six of the eight
specifications of misconduct and, among other things, issued a
stayed suspension of petitioner's license to practice medicine
for three years and instituted a practice monitor to supervise
his work during the suspension period. Both petitioner and the
BPMC sought review by the Administrative Review Board for
Professional Medical Conduct (hereinafter ARB). The ARB affirmed
the findings with regard to five of the six charges of
professional misconduct under review and did not disturb the
penalty imposed. Petitioner commenced this CPLR article 78
proceeding in this Court pursuant to Public Health Law § 230-c
(5) to review the ARB's determination.

      Our review of an ARB determination "is limited to whether
the [determination was] arbitrary and capricious, affected by an
error of law or an abuse of discretion" (Matter of Cattani v
Shah, 122 AD3d 1099, 1099 [2014] [internal quotation marks and
citation omitted]). Accordingly, the ARB's determination is
entitled to deference provided that it is rationally based and
factually supported by the record (see id.; Matter of Poulose v
Shah, 96 AD3d 1205, 1206 [2012], appeal dismissed 19 NY3d 1015
[2012]). During the two-day hearing, petitioner's former patient
testified that, after petitioner asked her about a certain
medication she was taking, he repeatedly questioned her about her
sexual activity. The patient testified that she was confused,
upset and "taken [a]back" by petitioner's questions because she
had been referred to him only for treatment of her gambling
addiction. The patient's testimony was not controverted and the
Hearing Committee determined that the patient was credible. Upon
our review of the record, and noting that credibility
determinations "are solely within the province of the
administrative factfinder" (Matter of Roumi v State Bd. for
Professional Med. Conduct, 89 AD3d 1170, 1173 [2011]), we find
that the ARB's determination to uphold the misconduct charge
based on petitioner "[w]illfully harassing, abusing, or
intimidating a patient . . . verbally" (Education Law § 6530
[31]) was rationally based and supported by the facts in the
record (see Matter of Mehulic v State Bd. for Professional Med.
                              -3-                517885

Conduct, 107 AD3d 1066, 1068 [2013], appeal dismissed 22 NY3d 911
[2013]; Matter of Roumi v State Bd. for Professional Med.
Conduct, 89 AD3d at 1173).

      We also reject petitioner's challenges to the misconduct
findings involving the 2009 employment application. Initially,
we find no merit in petitioner's claim that neither the Hearing
Committee nor the ARB should have considered the employment
records submitted during the prehearing conference or the
transcript of the prehearing conference. In general, the ARB is
authorized to "review . . . the record of the hearing [before the
Hearing Committee] and submitted briefs only" (Public Health Law
§ 230-c [4] [a]). The Administrative Law Judge (hereinafter ALJ)
who presided over petitioner's hearing was authorized to and did
conduct a prehearing conference "to consider matters which may
simplify the issues or expedite the proceeding" (10 NYCRR 51.9
[c] [9]). The record in an adjudicatory proceeding necessarily
includes all of the ALJ's intermediate rulings and evidence
presented (see State Administrative Procedure Act § 302 [1] [a],
[b]), as well as "questions and offers of proof, objections
thereto, and rulings thereon" (State Administrative Procedure Act
§ 302 [1] [d]). As such, the record necessarily included the
transcript of the prehearing conference which, among other
things, documented the ALJ's rulings that petitioner's employment
records were acceptable evidence. Once accepted, the evidence
was necessarily included and considered as part of the
administrative record (see State Administrative Procedure Act
§ 306 [a]; 10 NYCRR 51.11 [d] [5]; [e]).

      Petitioner's argument that the BPMC did not lay a proper
foundation for the admission of the certified employment records
is without merit because the ALJ was not bound by the formal
rules of evidence (see State Administrative Procedure Act § 306
[1]; 10 NYCRR 51.11 [d] [2]; Matter of D'Souza v New York State
Dept. of Health, 68 AD3d 1562, 1563 [2009]). Further, based on
our review of the record, the ALJ's consideration of the
employment records did not constitute a due process violation.
Rather, it is apparent that petitioner was given notice of the
hearing and of the evidence to be presented, and he had an
opportunity at the prehearing conference and during the hearing
to present evidence and testimony on his behalf (see Matter of
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Rigle v Daines, 78 AD3d 1249, 1251 [2010], appeal dismissed 16
NY3d 825 [2011]).

      Contrary to petitioner's arguments, we find that the record
supports the ARB's conclusions that petitioner engaged in
professional misconduct because he failed to report on a job
application that he had lost the privilege to practice at two
different medical facilities (see Education Law § 6530 [14]),
willfully made a false report (see Education Law § 6530 [21]) and
engaged in fraudulent practice (see Education Law § 6530 [2]),
and that such conduct evidenced "moral unfitness to practice
medicine" (Education Law § 6530 [20]). In general, a physician
may be guilty of fraud where the evidence demonstrates, "an
intentional misrepresentation or concealment of a known fact and
the intent or knowledge element may be inferred from the
surrounding circumstances" (Matter of Ostad v New York State
Dept. of Health, 40 AD3d 1251, 1253 [2007] [internal quotation
marks, brackets and citation omitted]). Such a charge may be
sustained where, as here, the misrepresentation is made on an
employment application (see e.g. Matter of Aptaker v
Administrative Review Bd. for Professional Med. Conduct, 60 AD3d
1160, 1163 [2009], lv denied 12 NY3d 713 [2009]). The BPMC was
not required to present evidence that the misrepresentation or
concealment caused injury to a party or patient or that the
conduct benefitted petitioner (see Matter of Patin v State Bd.
for Professional Med. Conduct, 77 AD3d 1211, 1214 [2010]; Matter
of Youssef v State Bd. for Professional Med. Conduct, 6 AD3d 824,
826 [2004]. Here, the evidence indicated that petitioner failed
to report on an employment application that he had been
terminated from two different medical positions. Given such
evidence, the Hearing Committee and ARB were permitted to draw an
adverse inference from petitioner's decision not to testify on
his own behalf at the hearing (see Matter of Kleinplatz v
Novello, 14 AD3d 946, 948 [2005]; Matter of Youssef v State Bd.
for Professional Med. Conduct, 6 AD3d at 826). In our view, the
ARB's findings with regard to the specified charges of
professional misconduct based on the employment application were
rationally supported by the facts in the record (see Matter of
Patin v State Bd. for Professional Med. Conduct, 77 AD3d at 1215;
Matter of Aptaker v Administrative Review Bd. for Professional
Med. Conduct, 60 AD3d at 1163).
                              -5-                  517885

      To the extent that petitioner challenges the penalty
imposed, we find no error. Our review is limited to determining
whether the penalty issued by the ARB is "so disproportionate to
the offense that it shocks one's sense of fairness" (Matter of
Cattani v Shah, 122 AD3d at 1100). Here, the ARB considered the
gravity of petitioner's conduct, but noted that, with regard to
his patient, the objectionable conduct was limited to verbal, not
physical, harassment. Under the circumstances, we are unable to
conclude that the penalty imposed, including the continuing
education requirements and practice monitor, was shocking to
one's sense of fairness.

      We have considered petitioner's remaining arguments and, to
the extent that they are preserved for our review, find them to
be without merit.

     Lahtinen, J.P., Garry and Clark, JJ., concur.



      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
