Summary
In Matter of Shander v. Allen (28 A.D.2d 1150, affd. 24 N.Y.2d 974), the license of a certified public accountant was revoked upon the ground that he had engaged in fraud, deceit and gross negligence in the practice of his profession; that he had been guilty of unprofessional conduct; and that he had pleaded guilty to the commission of a misdemeanor.
Summary of this case from Bialo v. MyersonOpinion
November 3, 1967
Appeal from a judgment of the Supreme Court, Albany County, in an article 78 proceeding which annulled the determination of the Commissioner of Education and the Board of Regents revoking respondent's license to practice as a certified public accountant, and remitted the matter to consider and fix a period of suspension rather than a revocation. Petitioner-respondent was charged with three specified violations of section 7406 Educ. of the Education Law as grounds for revocation of his license, to wit: (1) Fraud, deceit and gross negligence in the practice of public accountancy, (2) Unprofessional conduct, and (3) Commission of crime. The petitioner pleaded guilty to all the specifications and admitted that he had pleaded guilty in Supreme Court, New York County, to a violation of section 1293-b of the Penal Law, a misdemeanor, and had received a suspended sentence. Petitioner was engaged in practice as a certified public accountant since 1945 and, at the time of the hearings herein, was 57 years old, married, and the father of two children. Specifically, he was charged with preparing and issuing a certified financial statement of one of his clients, Pilgrim Apparel, Inc., in which he had deliberately understated the liabilities of the corporation in order to give the corporation a chance to stay in business. A hearing was held before a subcommittee of the New York State Accountancy Committee on Grievances which recommended that petitioner's license be revoked. The Regents Committee on Discipline also recommended revocation of petitioner's license, which recommendation was approved by the Board of Regents, and the Commissioner of Education issued an order on April 8, 1966 revoking petitioner's certificate. The sole issue on this appeal is whether or not the punishment imposed is harsh, arbitrary or shocking. The question of punishment and its mitigation is primarily one for the Board of Regents, and our review is limited to the query "if the measure of punishment or discipline imposed is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." ( Matter of Stolz v. Board of Regents, 4 A.D.2d 361, 364; Matter of Scire v. Board of Regents, 23 A.D.2d 943; Matter of Eisenstein v. Board of Regents, 26 A.D.2d 971, mot. for lv. to app. den. 19 N.Y.2d 581.) In Matter of Gaines v. Allen ( 20 A.D.2d 598), this court, by a 3 to 2 decision, modified a determination revoking the license of a certified public accountant to a suspension for two years on the ground that the petitioner's single incident of unprofessional conduct in a professional record, otherwise without complaint, did not warrant revocation of his license. In Matter of Leavitt v. Board of Regents ( 9 A.D.2d 987), the petitioner had pleaded guilty to a violation of the Public Health Law, a misdemeanor, and his punishment was suspension of his license for a period of six months. In Matter of Levy ( 22 A.D.2d 556, 558), an attorney, after a conviction of a misdemeanor and receiving a suspended sentence, was suspended for six months, the court stating "we are dealing with an isolated instance of misconduct and not a general course of activity." (Cf. Matter of Strahl, 13 A.D.2d 446; Matter of Switzer, 17 A.D.2d 589.) Mr. Justice FOSTER held at Special Term that "viewing the offense found as a single isolated incident in a professional career otherwise unblemished, we are inclined to the view that the punishment meted out was disproportionate to the offense." Upon the entire record in this case it appears that the revocation of petitioner's license was too severe a penalty and should be modified. (CPLR 7803, subd. 3.) Judgment affirmed, without costs.
The facts and circumstances of this case are set forth in the majority opinion. As noted therein, the petitioner "was charged with preparing and issuing a certified financial statement of one of his clients, Pilgrim Apparel, Inc., in which he had deliberately understated the liabilities of the corporation in order to give the corporation a chance to stay in business". The petitioner pleaded guilty to such deliberate act. While those cases cited by the majority and dealing with the modification of administrative determinations are at times useful as a guide in attempting to determine a fair punishment, they are not in any way conclusive as to whether or not the punishment imposed in a particular case is harsh, arbitrary or shocking. Here the deliberate act of the petitioner warrants the punishment imposed by the Board of Regents and its determination should be confirmed. The court's power to substitute its judgment for that of the Board of Regents should be exercised with caution in the limited field of its review. The judgment appealed from should be reversed.