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

50 N.Y.2d 854 (1980)

In the Matter of Augustus Falcone, Respondent, v. New York State Education Department et al., Appellants.

Court of Appeals of the State of New York.

Argued April 23, 1980.

Decided June 3, 1980.

Robert Abrams, Attorney-General (John J. O'Grady, Shirley Adelson Siegel and William L. Wood, Jr., of counsel), for appellants.

Thomas Laverne and Mark C. Kriss for respondent.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.

*855MEMORANDUM.

The judgment of the Appellate Division should be reversed, *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 N.Y.2d 375; Matter of Pell v Board of Educ., 34 N.Y.2d 222.)

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

Judgment reversed, etc.