A Brooklyn-based dentist's license was rightfully revoked by the state Board of Regents after the dentist pleaded guilty to defrauding insurance companies even though his crime didn't harm patients—in fact, he provided patients with quality care for 25 years, an appeals court has ruled.

In affirming the board's decision to revoke the license of longtime dentist Dmitry Epelboym, the Appellate Division, Third Department wrote in its decision that “the absence of patient harm does not preclude a penalty of license revocation.”

The unanimous appellate panel also underscored that the board, in choosing to revoke Epelboym's license, had apparently decided that any mitigating factors were “outweighed … by the gravity of [the dentist's] offense.” Moreover, the panel said it was within the board's discretion to balance and weigh such factors.

“An administrative penalty falls within the discretion of the reviewing agency and will not be disturbed unless it is so disproportionate to the offense that it shocks one's sense of fairness,” the panel stated as it laid out the standard of review in the Article 78 proceeding while citing, among other cases, Matter of Huang v. Administrative Review Bd. for Professional Med. Conduct.

An attorney for Epelboym on Thursday said he and his client were disappointed with the panel's decision, which they believed “did not give enough weight to the doctor's unblemished and distinguished past, his character and his payment of restitution for all monies allegedly wrongfully billed.”

The lawyer, John Martin, a Garfunkel Wild partner in Great Neck added that “we are considering our options in terms of further appeals.”

According to the panel's opinion, Epelboym pleaded guilty in 2012 to the crime of first-degree scheme to defraud. Prosecutors alleged that between 2005 and 2011, he had billed private insurance companies for services he claimed were performed in Manhattan but were actually rendered at his Brooklyn office.

The purpose of the scheme, the unanimous panel said, was to have the insurance companies reimburse him for services at a higher Manhattan rate.

The veteran dentist was ultimately sentenced to five years of probation and 300 hours of community service. And at the time of his sentencing, he had paid back $345,002.47 in restitution, based on losses caused by the scheme.

The state Education Department then charged Epelboym with professional misconduct, under Education Law § 6509 (5) (a) (i), based on his crime, the panel wrote.

A Board of Regents review committee then held a misconduct hearing, after which it recommended Epelboym have his license revoked and be fined. The full board later adopted the committee's unanimous recommendations, the panel wrote.

Epelboym fought back, lodging an Article 78 proceeding in the Third Department, pursuant to Education Law § 6510 [5]. He argued that revoking his license was inappropriate under the circumstances, the panel said.

Panel Justices Elizabeth Garry, Michael Lynch, Christine Clark, Eugene Devine and Sharon Aarons disagreed.

“Although petitioner [Epelboym] argues that a less severe penalty should have been imposed due to the presence of numerous mitigating factors, such as the absence of patient harm and the quality of care that he had provided his patients for 25 years, it is clear from the record that those factors were before the board for consideration,” the justices wrote in the July 18 decision.

They then added that “the Board's decision to revoke [Epelboym's] license does not demonstrate that it ignored those alleged mitigating factors, but rather implies that such evidence was outweighed by, among other considerations, the gravity of petitioner's offense.”

Moreover, “the Board expressly found that [Epelboym] did not accept responsibility for his conduct.”

The dentist, wrote the justices, submitted character evidence, for instance, but “the Board noted that [his] character witnesses were unaware of the details of [his] conviction and some of the letters deflected [Epelboym's] responsibility and claimed that the billing error was committed by an employee or was unbeknownst to [him]. “

He also “attributed the fraud to a billing error, stating that he 'had no other choice' but to plead guilty and that he did so upon the advice of his counsel solely to resolve the case,” the justices said, before adding that “in our view, the record provides ample support for the Board's finding that petitioner did not accept responsibility.”

The justices also noted “inasmuch as [Epelboym] contends that other health professionals have received lesser penalties for similar or more serious misconduct, we note that 'the penalties imposed in other disciplinary cases are irrelevant because each case must be judged on its own peculiar facts and circumstances,'” quoting Matter of Kim v. Board of Regents of the State of N.Y.

Martin, Epelboym's lawyer, also said Thursday that “given that there has never been a question about the quality of Dr. Epelboym's care for his patients, we hoped that the court would see clear to allow him to continue his practice.”

The respondents in the Article 78 action, which included the Board of Regents and the Education Department, were represented by James Hershler, an assistant state attorney general. The Attorney General's Office did not respond to a request for comment.