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