IN RE: Joseph P. SALDANHA (1998)

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Public Health Law § 230-c[5] ) to review a determination of respondent Administrative Review Board for Professional Medical Conduct which revoked petitioner's license to practice medicine in New York.

In this CPLR article 78 proceeding, petitioner, an orthopedic surgeon, challenges a determination of respondent Administrative Review Board for Professional Medical Conduct (hereinafter the Board) finding him guilty of four specifications of moral unfitness to practice medicine (Education Law § 6530 [20] ), four specifications of willfully filing a false report (Education Law § 6530[21] ), four specifications of practicing medicine fraudulently (Education Law § 6530[2] ) and one specification of being convicted of an act constituting a crime under New York law (Education Law § 6530[9][a][i] ).   The first 12 specifications stem from false statements petitioner made concerning his West Virginia disciplinary history in applications for registration with the Education Department and for privileges at two New York hospitals;  the final specification arises out of an unrelated firearm conviction.   In making its determination of guilt, the Board specifically rejected the opinion of petitioner's expert witness, a psychiatrist, that petitioner was suffering from depression at the time the false statements were made and that petitioner therefore lacked the requisite intent to falsify.   Petitioner's primary contention in this proceeding is that the Board was legally bound by that expert opinion and erred in rejecting it.   We disagree.

 Under the applicable standard of review, i.e., “whether the [Board's] determination was arbitrary and capricious, affected by error of law or an abuse of discretion” (Matter of Chua v. Chassin, 215 A.D.2d 953, 954, 627 N.Y.S.2d 152, lv. denied 86 N.Y.2d 708, 634 N.Y.S.2d 441, 658 N.E.2d 219), our inquiry is “whether the administrative determination has a rational basis supported by fact” (id., at 954-955, 627 N.Y.S.2d 152).   In making such inquiry, we do not resolve credibility issues or weigh the testimony of expert witnesses, issues which are solely within the province of the administrative factfinder (see, id., at 955, 627 N.Y.S.2d 152;  Matter of Moss v. Chassin, 209 A.D.2d 889, 891, 618 N.Y.S.2d 931, lv. denied 85 N.Y.2d 805, 627 N.Y.S.2d 322, 650 N.E.2d 1324, cert. denied 516 U.S. 861, 116 S.Ct. 170, 133 L.Ed.2d 111;  Matter of Santasiero v. Sobol, 199 A.D.2d 835, 836, 607 N.Y.S.2d 142, lv. denied 83 N.Y.2d 754, 612 N.Y.S.2d 109, 634 N.E.2d 605).   In view of the record evidence that petitioner's expert had seen him only twice shortly before the hearing and made no attempt to obtain independent information about petitioner's prior circumstances in West Virginia, the Board's rejection of the expert's opinion concerning petitioner's mental state approximately 41/212 years prior to the consultation as “unconvincing” and entitled to no weight constituted an appropriate exercise of its factfinding authority.   In addition, the uncontroverted evidence as to petitioner's awareness of the true state of facts at the time he gave the false responses was sufficient to support the inference of guilty knowledge and intent, thereby providing a sufficient factual predicate for the Board's determination (see, Adler v. Bureau of Professional Med. Conduct, State of New York, Dept. of Health, 211 A.D.2d 990, 992, 622 N.Y.S.2d 609;  Matter of Berger v. Board of Regents of State of N.Y., 178 A.D.2d 748, 751, 577 N.Y.S.2d 500, lv. denied 80 N.Y.2d 918, 589 N.Y.S.2d 302, 602 N.E.2d 1118, cert. denied 507 U.S. 1018, 113 S.Ct. 1815, 123 L.Ed.2d 446;  Matter of Sung Ho Kim v. Board of Regents of Univ. of State of N.Y., 172 A.D.2d 880, 881-882, 567 N.Y.S.2d 949, lv. denied 78 N.Y.2d 856, 574 N.Y.S.2d 938, 580 N.E.2d 410).

 We are also unpersuaded by the contention that the penalty of revocation of petitioner's license to practice medicine is so grossly disproportionate to his offenses as to be shocking to our sense of fairness, particularly in view of petitioner's conduct in repeatedly concealing his employment history and misrepresenting his medical credentials (see, Matter of Sung Ho Kim v Board of Regents of Univ. of State of N.Y., supra, at 882, 567 N.Y.S.2d 949;  Matter of Sasson v. Commissioner of Educ., 127 A.D.2d 875, 876, 511 N.Y.S.2d 696).

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

MERCURE, J.

CARDONA, P.J., and WHITE, SPAIN and GRAFFEO, JJ., concur.