Opinion
April 30, 1996
Appeal from the Supreme Court, New York County (Martin Evans, J.).
The IAS Court properly annulled respondent's determination terminating petitioner's participation as a Medicaid provider as arbitrary and capricious, since the evidence failed to support the stated reason for the termination, namely, that petitioner pharmacy carried "misbranded drugs" as defined by Education Law § 6815 (2), and that such would "imminently endanger" the "public health or welfare or the health or welfare of a recipient" if petitioner's continued participation in the Medicaid program were allowed ( 18 NYCRR 515.7 [d]). However, even if the reasons stated for the termination were such a violation, we would find, under the established facts here, that the penalty imposed was "`"so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness."'" ( Schaubman v. Blum, 49 N.Y.2d 375, 379.) We have considered respondent-appellant's other contentions and find them to be without merit.
Concur — Murphy, P.J., Rubin, Kupferman, Ross and Tom, JJ.