Opinion
90416
April 10, 2003.
Appeal from a judgment of the Supreme Court (Malone Jr., J.), entered September 4, 2001 in Albany County, which granted plaintiff's motion for summary judgment.
Thomas A. Butti, Ossining, appellant pro se.
Eliot Spitzer, Attorney General, Albany (Marlene O. Tuczinski of counsel), for respondent.
Before: Cardona, P.J., Mercure, Carpinello, Lahtinen and, Kane, JJ.
MEMORANDUM AND ORDER
After defendant, a chiropractor, pleaded guilty to grand larceny in the second degree, insurance fraud in the second degree, attempted grand larceny in the third degree, and offering a false instrument for filing in the first degree, he was sentenced to 3 to 9 years in prison and ordered to pay restitution in the amount of $184,492 (People v. Butti, 250 A.D.2d 859, lv denied 92 N.Y.2d 923). Thereafter, the Department of Education charged defendant with professional misconduct pursuant to Education Law § 6509(5)(a)(i). Defendant did not appear, but made a written submission to the Regents Review Committee in opposition to the charges. In a June 1999 determination, defendant was found guilty and his license was revoked. In addition, a fine of $10,000 was imposed. Following defendant's failure to pay, plaintiff initiated this action in January 2001 to recover the unpaid fine. In his answer, defendant argued that he was denied due process because he was unable to attend the hearing and his guilty pleas were coerced. He also requested that the fine be stayed until he is no longer incarcerated. Plaintiff moved for summary judgment and Supreme Court granted the motion, prompting this appeal.
Defendant's principal argument, raised for the first time on appeal, is his claim that the administrative fine is excessive and unconstitutionally punitive. Significantly, failing to raise an issue before Supreme Court results in that issue being unpreserved for appellate review (see Matter of Terminix Intl. Co. v. Assistant Commr. for Hearings Mediation Servs. for New York State Dept. of Envtl. Conservation, 301 A.D.2d 810, 812, 753 N.Y.S.2d 591, 593). Moreover, even if this Court considered this issue in the interest of justice (see Progressive Cas. Ins. Co. v. Baker, 290 A.D.2d 676, 677), we would determine that it should have been raised in a CPLR article 78 proceeding following the issuance of the Department's determination (see Horne v. New York State Dept. of Health, 287 A.D.2d 940, 942; see e.g. Matter of Weg v. De Buono, 269 A.D.2d 683, lv denied 94 N.Y.2d 764). Inasmuch as defendant failed to do so within the applicable four-month statute of limitations period, the proceeding would be time barred (see Horne v. New York State Dept. of Health, supra at 941; see also CPLR 217). In any event, were we to reach the merits, given the record evidence of defendant's submission of numerous false insurance claims resulting in the theft of large sums of money, we would find no error in the penalty imposed (see Matter of Galin v. De Buono, 259 A.D.2d 788, 790, lv denied 93 N.Y.2d 812; Matter of Board of Educ. of City School Dist. of City of N.Y. v. Mills, 250 A.D.2d 122, 126, lv denied 93 N.Y.2d 803).
We have examined defendant's remaining arguments and find them either without merit or not properly before us.
Mercure, Carpinello, Lahtinen and Kane, JJ., concur.
ORDERED that the judgment is affirmed, without costs.