Opinion
103686/10.
Decided October 27, 2010.
Lawrence B. Goldberg, P.C., New York, NY, For Petitioner.
Corporation Counsel of the City of New York, New York, NY, For Respondent.
In this hybrid action brought as an Article 78 proceeding in the nature of mandamus (and also including a declaratory judgment cause of action), petitioner Greenwood 2, Inc. ("Greenwood") seeks an order directing respondent NYC Business Integrity Commission ("BIC") to issue a determination on Greenwood's Class 2 Registration application.
Pursuant to Administrative Code § 16-503, BIC is "responsible for the licensing, registration and regulation of businesses that remove, collect or dispose of trade waste." Pursuant to § 16-505, businesses who are "solely engaged in the removal of waste materials resulting from building demolition, construction, alteration or excavation shall be exempt from the licensing provisions . . ." To be exempt from the licensing requirements, businesses must apply to BIC for a Class 2 registration. § 16-505 further provides that "grant of such exemption shall be made by the commission upon its review of an exemption application, which shall be in the form and contain the information prescribed by rule of the commission and shall be accompanied by a statement by the applicant describing the nature of the applicant's business and listing all principals of such business."
Title 17 of the Rules of the City of New York ("RCNY") § 2-03 sets forth the application requirements for a Class 2 registration and indicates that the BIC, upon receipt of disclosure from the applicant, may "require such additional information related to such disclosure, including without limitation documents and deposition testimony, as the Commission determines is necessary to render a determination." In rendering its determination, BIC's purpose is to ensure good character, honesty and integrity in the carting business.
Greenwood is a company engaged in providing trucks and drivers for the transportation of construction related materials. On or about March 26, 2009, Greenwood submitted an application for a Class 2 registration. BIC has not yet issued a determination on Greenwood's application.
Consequently, Greenwood now commences this hybrid action, brought as an Article 78 proceeding in the nature of mandamus and also including a declaratory judgment cause of action, seeking an order directing BIC to issue a determination on Greenwood's Class 2 Registration application. In support of the petition, Greenwood's counsel submits his affirmation and an affidavit from Greenwood's president Toni Thomson ("Thomson"). Greenwood maintains that it submitted its application on March 26, 2009 and six to eight months went by before BIC finally asked for additional information and documentation on the application. Counsel maintains that as of February 22, 2010, there were no outstanding document demands or discovery requests and BIC had all the information it needed to make a decision. Greenwood has made requests for a decision but to no avail. According to Thomson, Greenwood is suffering adverse economic impact by the delay.
In its answer, BIC argues that Greenwood is not entitled to an order directing BIC to issue a determination on the application because neither the Administrative Code nor the RCNY sets a time frame within which BIC must issue a determination on a Class 2 registration application and BIC is entitled to use its discretion in determining when its investigation is complete. Further, BIC has been actively pursuing the investigation, which deals with many parties and complex issues, and only a year has passed since the application was filed.
BIC submits the affidavit of its Assistant Commissioner for Legal Affairs John Curry ("Curry"), who explains that after receiving Greenwood's application, BIC conducted background investigations into Thomson and John Farnsworth ("Farnsworth"), an individual listed as a 49% shareholder of Greenwood on Greenwood's 2007 federal tax return. During the course of those investigations, specifically from June 2009 through October 2009, BIC learned of allegations of unfair trade practices made against Greenwood in conjunction with other trucking companies and also learned of a complaint brought on behalf of Local 282, a truck drivers' union, alleging that Greenwood and the other truck companies committed fraud and ERISA violations. Depositions of five witnesses were then conducted from November 2009 through February 2010 after many adjournments requested by Greenwood's counsel. BIC maintains that there is still one outstanding deposition and a factoring agreement that Greenwood has yet to produce.
Greenwood alleges that John Farnsworth was erroneously listed as a minority principal of Greenwood on the 2007 tax return, and the error was then corrected in an amended 2007 tax return.
According to Greenwood, BIC does not need that deposition testimony or the factoring agreement to issue a determination.
Discussion
A mandamus is available to compel the performance of a ministerial, nondiscretionary act where there is a clear legal right to the relief sought. See CPLR 7803; Matter of Anonymous v. Commissioner of Health, et al. , 21 AD3d 841 (1st Dept. 2005); Joy Builders, Inc. v. Ballard , 20 AD3d 534 (2nd Dept. 2005). Mandamus is an appropriate vehicle by which to compel acts that officials are duty-bound to perform, regardless of whether they may exercise their discretion in doing so. Mandamus will lie if a public entity has abdicated its responsibilities by failing to discharge them, whatever its motive may be. See Matter of Jurnove v. Lawrence , 38 AD3d 895 (2nd Dept. 2007).
Here, Greenwood submitted its Class 2 Registration Application on March 26, 2009. BIC conducted investigations through October 2009 into Thomson and Farnsworth's backgrounds and into various allegations made against Greenwood. Depositions were then conducted from November 2009 through February 2010 after many adjournments requested by Greenwood's counsel. Greenwood then filed the instant petition in March 2010.
Based on the foregoing, the Court does not find that BIC has failed to discharge any duty in its evaluation of Greenwood's application. As noted by BIC, the Administrative Code does not set any time limits set for issuing a determination and no evidence was presented here that BIC has extensively delayed the application evaluation process. If anything, it was Greenwood who requested several adjournments of depositions.
Further, Greenwood has pointed to no probative case law or other legal authority to support its argument that the Court should intervene in the application process and direct BIC to issue a determination immediately. While the Court expects BIC to complete its application evaluation process in an efficient, fair and timely manner, the Court has not been presented with any evidence or legal authority warranting its intervention, at this point, in BIC's evaluation of Greenwood's application.
In accordance with the foregoing, it is hereby
ORDERED that petitioner Greenwood 2, Inc.'s petition is denied and the hybrid action brought as an Article 78 proceeding in the nature of mandamus (and also including a declaratory judgment cause of action) is dismissed.
This constitutes the decision and order of the court.