MATTER OF FALCONE v. New York State Educ. Dep't

407 N.E.2d 1335, 50 N.Y.2d 854, 430 N.Y.S.2d 39, 1980 N.Y. LEXIS 2424

Opinion

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, 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.