Opinion
24601/2013
03-31-2015
In the Matter of the Petition of Donald E. Merring, Petitioner, for a Judgment Pursuant to Civil Practice Law and Rules Article 78 Reviewing and Annulling A May 13, 2013 Final Agency Determination of the Office of the Police commissioner, Suffolk County Police Department, Affirming A March 6, 2013 Disapproval of Pistol License Application No.C-093608 by the Pistol Licensing Bureau, Suffolk County Police Department, v. Edward Webber in his official capacity as Suffolk County Police Commissioner; BRIAN P. CASSIDY, SGT. 1106/1000, in his official capacity (Office of the Police Commissioner); CPT. W. READ, C.O., in his official capacity (Pistol Licensing Bureau); and LT. KIMBERLY MCGREAVEY, X.O., in her official capacity (Pistol Licensing Bureau)., Respondents.
PETITIONER'S ATTY: JOHN S. CAMPO, Esq. 626 RXR Plaza, 6th Fl. West Tower Uniondale, NY 11556 RESPONDENTS'S ATTY: DENNIS M. BROWN, SUFFOLK COUNTY ATTORNEY By: Megan O'Donnell, Esq. H. Lee Dennison Building 100 Veterans Memorial Highway PO Box 6100 Hauppauge, NY 11788-0099
PETITIONER'S ATTY:
JOHN S. CAMPO, Esq.
626 RXR Plaza, 6th Fl. West Tower
Uniondale, NY 11556
RESPONDENTS'S ATTY:
DENNIS M. BROWN,
SUFFOLK COUNTY ATTORNEY
By: Megan O'Donnell, Esq.
H. Lee Dennison Building
100 Veterans Memorial Highway
PO Box 6100
Hauppauge, NY 11788-0099
James Hudson, J.
Upon the following papers numbered 1-36 read on this Article 78 ; Notice of Motion/ Order to Show Cause and supporting papers 1-13; Notice of Cross Motion and supporting papers 0 ; Notice of Motion to Dismiss and supporting papers 14-34; Answering Affidavits and supporting papers 35-36; Other 0 ; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED , that respondents' motion to dismiss this proceeding brought pursuant to CPLR Art. 78 is granted; and it is further
ORDERED , that the petition is dismissed as respondents have provided a defense founded upon documentary evidence, pursuant to CPLR § 3211 (a)(1), sufficient to defeat petitioner's claim of an arbitrary and capricious decision; and it is further
ORDERED , that respondents shall serve a copy of this decision with Notice of Entry upon petitioner and shall file same with the Clerk of the Court within twenty days of receipt of this Order.
Petitioner brings this proceeding pursuant to Article 78 of the Civil Practice Law and Rules. Petitioner had made application to respondents for a permit to possess a pistol in Suffolk County. The application was denied and petitioner appealed administratively. At the appeal, the Office of the Police Commissioner made a final determination affirming the denial. Petitioner's application for a pistol license was disapproved and all administrative remedies have been exhausted. Petitioner now brings this action in the form of the special proceeding seeking mandamus from this Court annulling the determination of the Office of the Police Commissioner and directing that the pistol permit be issued. Respondents made a motion to dismiss the proceeding in lieu of an answer pursuant to CPLR §§ 7803 & 3211(a)(1)(5) and (7). Petitioner replies in the form of an affirmation in opposition to the motion.
In May of 2012, petitioner made application to respondents by written affidavit for a license to possess a pistol in Suffolk County. In June of 2012, the application was assigned to a police officer within the pistol bureau to investigate. The officer reviewed petitioner's application and initially identified four questions which required further explanation by petitioner. Those questions pertained to treatment for alcoholism or drug abuse, treatment for mental illness, use of marijuana and the receipt of traffic tickets. Based upon petitioner's positive responses to these questions, the officer required petitioner to appear for an interview in person. The interview, as explained in the investigating officer's affidavit, was designed to provide her with an opportunity to observe petitioner in person and to give petitioner an opportunity to further explain his answers. At the interview, the officer discovered that petitioner had neglected to disclose more information, which was relevant to the application and cast aspersions upon petitioner's credibility. Furthermore, it was revealed that there had been a history of discord in the family household into which petitioner wished to introduce the pistol and that on at least one occasion the police had been called to the house. In addition, it was determined that petitioner's brother resided at the house and that he had an arrest record. Upon consideration of the totality of the circumstances surrounding the application, the investigating officer made the determination that the application should be disapproved. The officer based the determination upon all attachments to the application and related documentation and many factors including petitioner's past issue with drug and alcohol abuse, past bout with depression, his living situation with his family and his failure to disclose information.
Petitioner presents a well researched summary of the law pertaining to Article 78 proceedings, citing seminal decisions on the question of the proper standard of review in pistol license cases, Kelly v Klein , 96 AD3d 846 (2nd Dept. 2012); Matter of Velez v DiBella , 77 AD3d 670 (2nd Dept 2010). Additionally, petitioner relies upon Matter of Pell v Board of Education , 34 NY2d 222 (1974) for the Court of Appeals discussion in that case of the arbitrary or capricious test. "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts, " Matter of Pell, supra., at 231. Petitioner relies upon these authorities and fashions an argument that the action taken by the respondents in this case lacked a sound basis in reason and disregarded the facts.
Petitioner proceeds to cite cases, specific to pistol permitting, in which an Article 78 proceeding was taken in response to a permit being denied or revoked. These cases are cited for specific points of law and the relevant arguments are well taken. Petitioner cites Lang v Rozzi , 205 AD2d 783 (2nd Dept 1994) for the proposition that the actual history of the license holder and real use of a firearm is relevant to the decision process. Petitioner also cites to a string of cases involving pistol permit revocations in which petitioners actions were so egregious that clearly the courts upholding the agencies actions in those cases were warranted. See, e.g., Matter of Lipton v Ward , 116 AD2d 474 (1st Dept 1986) ( revocation of petitioner's pistol permit was upheld where testimony by estranged wife included physical abuse, threats of violence and repeated dry firing of pistol in the house); Matter of Porter v Kelly , 272 AD2d 333 (2nd Dept. 2000) (petitioner left loaded weapon on floor of unattended vehicle and then failed to report it when it was stolen); Matter of Lugo v Safir , 272 AD2d 216 (1st Dept. 2000) ( petitioner found to have violated rule which allows target licensees to carry their weapons only to and from authorized target range). The list is not exhaustive and petitioner cites these cases in an effort to argue that his application lacked conduct approaching the examples given and thus the respondents' decision making processes were flawed.
The denial of a pistol permit does not require that the applicant acted in some manner that was egregious or outrageous, but rather, the petitioner in a case such as this must show that the respondent acted in a manner which was arbitrary and capricious and rendered a decision which lacked a relationship to the facts and circumstances presented. The leading case in this regard remains Pell v Board of Education, supra.:
In Article 78 proceedings, "the doctrine is well settled, that neither the Appellate Division nor the Court of Appeals has power to upset the determination of an administrative tribunal on a question of fact; *** 'the courts have no right to review the facts generally as to weight of evidence, beyond seeing to it that there is "substantial evidence."" (Cohen and Karger Powers of the New York Court of Appeals, § 108, p. 460; 1 NY Jur., Administrative Law, §§ 177, 185; see, Matter of Halloran v. Kirwan , 28 NY2d 689, 690 [dissenting opn. of Breitel, J.]). "The approach is the same when the issue concerns the exercise of discretion by the administrative tribunal: The courts cannot interfere unless there is no rational basis for the exercise of discretion or the action complained of is 'arbitrary and capricious."' (Cohen and Karger, Powers of the New York Court of Appeals, pp. 460-461; see, also, 8 Weinstein-Korn-Miller, NY Civ. Prac., par. 7803.04 et seq.; 1 NY Jur., Administrative Law, §§ 177, 184; Matter of Colton v. Berman , 21 NY2d 322, 329).
The arbitrary or capricious test chiefly "relates to whether a particular action should have been taken or is justified *** and whether the administrative action is without foundation in fact." (1 NY Jur., Administrative Law, § 184, p. 609). Arbitrary action is without sound basis in reason and is generally taken without regard to the facts. In the Matter of Colton v. Berman (supra, p. 329) this court (per Breitel, J.) said "the proper test is whether there is a rational basis for the administrative orders, the review not being of determinations made after quasi-judicial hearings required by statute or law." (Emphasis supplied.) Where, however, a hearing is held, the determination must be supported by substantial evidence (CPLR § 7803, subd. 4); and where a determination is made and the person acting has not acted in excess of his jurisdiction, in violation of lawful procedure, arbitrarily, or in abuse of his discretionary power, including discretion as to the penalty imposed, the courts have no alternative but to confirm his determination (CPLR § 7803, subd. 3; Matter of Procaccino v. Stewart , 25 NY2d 301; but, see, Matter of Picconi v. Lowery , 35 A D 2d 693, affd. 28 NY2d 962). Rationality is what is reviewed under both the substantial evidence rule and the arbitrary and capricious standard. (Matter of 125 Bar Corp. v. State Liq. Auth ., 24 NY2d 174, 178; 1 NY Jur, Administrative Law, § 184.), Pell, supra., at 230-231.
In the present case, respondents have presented, in connection with their motion to dismiss, ample documentary evidence to establish that the decision to deny petitioner a pistol license was based upon the totality of the circumstances presented to the determining agency. The discretion as to what constitutes "proper cause" for the issuance of a permit is vested in the administrator, Sable v McGuire , 92 AD2d 805(1st Dept. 1983), citing, Hochreich v Codd , 68 AD2d 424 (1st Dept. 1979). Here, respondents provided documentary evidence consisting of the affidavits of the police officers in the pistol bureau who were assigned to the investigation of this application and who reviewed the denial of the application. In addition, the court is provided with the application itself, the supplemental affidavits of the petitioner indicating that he had left out relevant information in the initial application, the Certificate of Disposition from petitioner's arrest for petit larceny [Penal Law § 155.25], the letters of petitioner's treating psychiatrist, the arrest record of petitioner's brother (with whom he co-habits his parents' home), laboratory report from petitioner's brother's arrest [VTL § 1192.4], domestic incident report involving petitioner and his parents wherein the parents allege that petitioner was using illegal drugs and became abusive toward them, and the letters from respondents denying the application and denying the appeal of the first determination.
The review of all of the relevant information upon which respondents based their decision to deny the permit paints a picture of an undeniably dangerous environment into which a pistol should not be introduced. Respondents have met their burden of showing that the decision was based upon a review of the facts and that substantial evidence supports the challenged determination, see, Perlov v Kelly , 21 AD3d 270 (1st Dept. 2005). As respondents' counsel adeptly points out, it is not any single one of the factors considered that justifies respondents' decision, but certainly as a whole, when considered together, the circumstances warrant the denial, see, e.g., Gonzalez v Lawrence , 36 AD3d 807 (2nd Dept. 2007); Wilson v NYC Police Dept. License Div ., 2012 WL 6861589. "The documentary evidence submitted by the respondents in this case establishes a complete defense to the proceeding (see CPLR 3211[a][1]), as it utterly refute[d]' the petitioner's factual allegation, thereby conclusively establishing a defense as a matter of law'" Oliner v Sovereign Bank , 123 AD3d 1041 (2nd Dept. 2014); citing, Mendelovitz v. Cohen , 37 AD3d 670 (2nd Dept. 2007). Finally, the ability of petitioner to obtain administrative review of the agency's decision provided yet another rebuttal to petitioner's claim of an arbitrary and capricious determination lacking a sound basis in fact or reason. Additionally, the availability for review negates the need for a hearing, DiMonda v Bristol , 291 AD2d 830 (4th Dept. 1995); Bobrick v Leggett , 71 AD2d 869 (2nd Dept. 1979).
The foregoing constitutes the decision and order of the Court.
DATED: MARCH 31, 2015
RIVERHEAD, NY
HON. James Hudson, A.J.S.C.