Opinion
2013-10-4
In the Matter of Christian CURTS, Petitioner, v. Hon. Douglas A. RANDALL, Judge, County of Monroe, Respondent.
Gallo & Iacovangelo, LLP, Rochester (David D. Spoto of Counsel), for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of Counsel), for Respondent.
Gallo & Iacovangelo, LLP, Rochester (David D. Spoto of Counsel), for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS AND WHALEN, JJ.
MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, after a hearing, revoking his pistol permit. Respondent initially temporarily suspended petitioner's pistol permit after petitioner was arrested for menacing in the second degree ( seePenal Law § 120.14[1] ). Petitioner was subsequently acquitted of the menacing charge, but respondent nevertheless permanently revoked the permit. We agree with petitioner that the determination is arbitrary and capricious, and constitutes an abuse of discretion inasmuch as the record from the hearing is devoid of any evidence upon which respondent could have based his determination ( see Matter of Papaioannou v. Kelly, 14 A.D.3d 459, 460, 788 N.Y.S.2d 378;see generally Matter of Jennings v. New York State Off. of Mental Health, 90 N.Y.2d 227, 240, 660 N.Y.S.2d 352, 682 N.E.2d 953). We further agree with petitioner that his due process rights were violated inasmuch as the record from the hearing does not demonstrate that he was afforded the opportunity to review the alleged documentation upon which respondent based his determination ( see LaGrange v. Bruhn, 276 A.D.2d 974, 975, 714 N.Y.S.2d 392). We therefore annul the determination. We note, however, that our determination does not preclude the commencement of a new revocation proceeding ( see Matter of Demchik v. Hannigan, 182 A.D.2d 1133, 1133, 583 N.Y.S.2d 334).
It is hereby ORDERED that the determination is unanimously annulled on the law without costs and the petition is granted.