Calendar Date: November 21, 2019
Zisholtz & Zisholtz, LLP, Mineola (William Mastrogiannis
of counsel), for petitioner.
Letitia James, Attorney General, New York City (James M.
Hershler of counsel), for respondents.
Before: Garry, P.J., Egan Jr., Lynch and Devine, JJ.
pursuant to CPLR article 78 (initiated in this Court pursuant
to Education Law § 6510 ) to review a determination
of the Board of Regents, among other things, revoking
petitioner's license to practice as a licensed practical
February 2014, petitioner, a licensed practical nurse, was
convicted of one count of scheme to defraud in the first
degree and six counts of grand larceny in the third degree
based upon her involvement in the operation of an unlicensed
nursing school within the state. She was sentenced to a
prison term of 1 to 4 years for her conviction of scheme to
defraud and concurrent terms of 2 to 7 years for each
conviction of grand larceny in the third degree.
In June 2015, the Office of Professional Discipline of
respondent State Education Department initiated a
disciplinary proceeding against petitioner based upon her
criminal convictions (see Education Law § 6509
 [a] [i]). Following a July 2017 hearing, the Regents
Review Committee (hereinafter the Committee) issued a report
finding her guilty of misconduct and recommended the
revocation of her nursing license and the issuance of a $10,
000 fine. Upon review, the Board of Regents (hereinafter the
Board) adopted the Committee's findings of fact,
determination of guilt and penalty recommendation. Petitioner
thereafter commenced this proceeding in this Court
challenging the Board's determination. 
contends that revocation of her license was not appropriate
under the circumstances. We disagree. The imposition of an
administrative penalty in a disciplinary proceeding pursuant
to the Education Law "rests within the discretion of the
reviewing agency and will not be disturbed unless it is so
disproportionate to the offense as to shock one's sense
of fairness" (Matter of Genco v Mills, 28
A.D.3d 966, 967 ; see Matter of Epelboym v Board of
Regents of the State of N.Y., 174 A.D.3d 1182, 1183
; Matter of Weeks v State Educ. Department/Univ. of
the State of N.Y., 113 A.D.3d 944, 945 ).
Petitioner contends that the revocation of her license was
"an unconscionable enhancement of sentence"
inasmuch as she has already served a 2½-year prison
sentence, one year of probation and been terminated from
Medicaid as a result of her underlying criminal convictions.
Moreover, she avers that nursing was her only form of
employment and, at the time she committed the underlying
crimes, she was not acting in her capacity as a licensed
practical nurse. Even assuming that the operation of a
fraudulent nursing school constituted misconduct separate and
distinct from petitioner's duties as a licensed practical
nurse, the imposition of a penalty following a finding of
professional misconduct "need not be [directly] related
to the practice of one's profession" (Matter of
Gordon v Commissioner of Educ., 144 A.D.2d 839, 840
in rendering its recommendation to the Board, the Committee
expressly considered the length of petitioner's
underlying prison sentence and the purported good that she
did for the immigrant and nursing communities prior to
engaging in the underlying criminal conduct. Nevertheless,
the record makes plain that petitioner consciously engaged in
a fraudulent scheme deliberately targeting a vulnerable
immigrant population by intentionally deceiving them into
devoting large sums of money, time and effort to obtain an
education and training that was knowingly insufficient for
them to be eligible to sit for the requisite licensure
examination to obtain a nursing license. In doing so, the
Committee concluded that petitioner demonstrated "a
profound lack of decency and integrity, which cannot be
tolerated in a licensed professional in this state, least of
all a nurse, who regularly deals with vulnerable populations
and who society must be able to trust." Petitioner's
misconduct also created the potential of having
underqualified and untrained applicants obtaining nursing
licenses, effectively jeopardizing the public health and
undermining the integrity of the nursing profession.
Accordingly, under the circumstances, we do not find that
revocation of petitioner's license and imposition of a
$10, 000 fine was so disproportionate to her underlying
criminal conduct as to shock one's sense of fairness
(see Matter of Epelboym v Board of Regents of the State
of N.Y., 174 A.D.3d at 1183; Matter of Yohanan v
King, 113 A.D.3d 971, 972-973 , appeal
dismissed 23 N.Y.3d 953');">23 N.Y.3d 953 , lv denied 24
N.Y.3d 902 ; Matter of Weeks v State Educ.
Department/Univ. of the State of N.Y., 113 A.D.3d at
945; Matter of Baman v State, 85 A.D.3d 1400, 1402
remaining arguments do not require extended discussion.
Petitioner's contention that the Board engaged in an
unlawful procedure in contravention of Education Law §
205 by not having a sufficient quorum when it rendered its
vote and order revoking her license is not properly before us
insofar as this issue was not raised in her petition (see
Matter of Infinger v Venettozzi, 164 A.D.3d 1578, 1579
; Matter of Tomarken v State of New York, 100
A.D.3d 1072, 1076 ; Matter of Kitchens v
Fischer, 65 A.D.3d 1431, 1432 ; Matter of
White v Goord, 278 A.D.2d 694, 694 ).
Similarly, petitioner waived any arguments with respect to
the Board's failure to consider Correction Law
§§ 752 and 753 in deciding to revoke her license,
as she failed to raise these contentions at her
administrative hearing (see Matter of Board of Coop.
Educ. Servs. for Second Supervisory Dist. of Erie, Chautauqua
& Cattaraugus Counties v University of State Educ.
Dept., 40 A.D.3d 1349, 1350 ; Matter of Hansen
v McCall, 10 A.D.3d 832, 834 ; Matter of
Abraham v Board of Regents of State of N.Y., 216 A.D.2d
812, 812 ).
P.J., Lynch and Devine, JJ., concur.
that the determination is confirmed, without costs, and