In re Karl v. N.Y.C. Dept. of Citywide Admin. Serv.

Full title: IN THE MATTER OF THE APPLICATION OF BRIAN KARL, Petitioner, For a Judgment…

Court: Supreme Court of the State of New York, New York County

Date published: Sep 24, 2008

2008 N.Y. Slip Op. 52312 (N.Y. Sup. Ct. 2008)

Opinion

108703/08.

Decided September 24, 2008.

Petitioner Brian Karl commenced this Article 78 proceeding to compel respondents to accept his application for a Master Fire Suppression Piping Contractor (Fire Suppression) license and to process it pursuant to the laws in effect in May 2008 when he sought to file the application. Respondents the New York City Department of Citywide Administrative Services, the New York City Department of Buildings and the City of New York (the City) oppose Karl's request.

Stuart A. Klein, Esq., Attorney for Plaintiff, New York, NY.

Mary O. Sullivan, Esq., Attorney for Respondent, NYC Law Department, New York, NY.

ALICE SCHLESINGER, J.

Background Facts

Petitioner Karl is a Master Plumber, having obtained his license in 1985. From 1978 until 1990, he installed fire suppression systems under the supervision of Licensed Master Plumber Robert Karl. (See Affidavit of Brian Karl at ¶¶ 1-2). It is that experience with fire suppression systems that is particularly relevant here.

Until 1990, licensed Master Plumbers were permitted to install fire suppression systems in New York City. Thereafter, only a plumber specifically licensed as a Master Fire Suppression Piping Contractor could install, maintain, repair or alter a fire suppression system. New York City Admin. Code § 26-142(1)(b). To obtain a Fire Suppression license, an applicant must possess the requisite practical experience, pass an examination, and then undergo an investigation by the Department of Buildings Licensing Unit. Admin. Code, Title 26, Article 2.

Effective July 1, 2008, the requirements for a Fire Suppression license changed. Admin Code § 28-410.4. Whereas the earlier law only required that an applicant have seven years of plumbing experience with at least three years in the design and installation of fire suppression piping systems [Admin. Code § 26-146(b)(1)], the new law demands more current relevant experience, requiring that the applicant have seven years of fire suppression experience within the ten-year period prior to the application. While Karl allegedly held the requisite experience under the earlier law (Aff. at ¶ 3), he acknowledges (at ¶ 5) that his experience does not satisfy the requirements under the new law.

In or about May of 2008, when Karl learned that the requirements for the Fire Suppression license were slated to change on July 1, 2008, he attempted to file an application for the next Fire Suppression license examination, hoping to qualify for the license under the rules then in effect. Since the exams are administered by the New York City Department of Citywide Administrative Services (DCAS), Karl went to both DCAS offices listed in the Department of Buildings instructions to file an application for the exam. However, both offices declined to accept Karl's application, explaining that the 2008 exam had been held in March and no date had yet been set for the 2009 exam. Shortly before the new law was scheduled to take effect, Karl commenced this mandamus proceeding to compel the City to accept his application and process it pursuant to the law in effect in May of 2008 when he sought to file the application.

The City Had No Duty to Accept Karl's Application

Karl commenced this proceeding in the nature of mandamus to compel the City "to perform a duty enjoined upon it by law." Civil Practice Law and Rules § 7803(1). Specifically, Karl argues that the Department of Citywide Administrative Services (DCAS) had a duty to accept his application for a Fire Suppression license when he sought to file it in May 2008. The City denies that DCAS has any such duty under any existing law or regulation.

As the City correctly asserts, mandamus relief is available only where there is "a clear and absolute legal right to the relief sought." See Resp. Memo at p. 6 citing Altamore v. Barrios-Paoli, 90 NY2d 378, 384 (1997); see also Matter of Ronald W. , 25 AD3d 4, 11 (1st Dep't 2005). Here, Karl fails to cite any statute or regulation which supports his claim that he had a clear legal right to file an application in May, or that DCAS had an absolute duty to accept it at that time. On the contrary, NYC Charter § 820 gives the DCAS Commissioner broad authority to promulgate reasonable rules and regulations and otherwise act to evaluate the suitability of license applicants, and establishing exam filing periods is a reasonable exercise of that authority. As explained by Mourad M. Fam, Director of the Technical, Engineering and License Examining Group at DCAS, in his affidavit in opposition to the petition, DCAS is responsible for developing, administering and grading a large volume of examinations for civil service and skilled license positions, such as Fire Suppression, in New York City. In Fiscal Year 2008, DCAS administered 226 such exams after processing 192,847 exam applications. To facilitate this work, DCAS has established a system of filing periods during which the Department accepts applications for different exams at different times.

As explained more fully by Fam and corroborated by documentation, filing periods for Fire Suppression licenses are set by fiscal year (July 1 to June 30), with a twenty-day filing period typically scheduled in December for an exam the following March. See Resp. Exhibits A-D. The filing period for the most recent license examination for Fiscal Year 2008 (July 1, 2007 to June 30, 2008) ran from December 5, 2007 until December 24, 2007, and DCAS administered the examination on March 15, 2008. See Resp. Exhibit A. The filing period for the next (Fiscal Year 2009) Fire Suppression license examination is tentatively scheduled from December 3, 2008 through December 23, 2008, and the examination is tentatively scheduled for March 21, 2009. See Resp. Exhibit B. Thus, when petitioner Karl sought to file his application in May of 2008, he had missed the Fiscal Year 2008 exam, and the filing period for the Fiscal Year 2009 exam had not yet commenced or even been set.

The City asserts that the use of discrete filing periods for different exams serves several organizational purposes. First, by limiting the filing period, the DCAS ensures it has sufficient time to create and disseminate the admission cards required for applicants to take the exams. In addition, the limited filing period ensures that applications are processed efficiently; that the information contained in the application is current; and that the Department's work flow is distributed evenly over the course of the year. (See Fam Affidavit).

These justifications are reasonable. Further, as the City points out, it is not unusual for agencies or organizations which administer exams to large numbers of applicants to use filing periods to facilitate smooth registration processes. For example, the New York State Board of Law Examiners has a thirty-day filing period during which individuals must apply to take the next Bar Exam to obtain a law license. (See Resp. Memo Appendix). Considering all these circumstances, no basis exists for mandamus relief compelling the City to accept Karl's application outside of the pre-determined filing period.

Principles of Fairness and Equity Do Not Compel the Requested Relief

Karl also argues that fundamental fairness compels the City to accept his application and process it pursuant to the law in effect in May 2008 when he first attempted filing, This argument, too, lacks merit.

To support his claim, Karl relies on Our Lady of Good Counsel R.C. Church and School v. Ball, 45 AD2d 66 (2nd Dep't 1974). The petitioners there had timely filed a bingo license application and were eligible to receive it. However, for some unspecified reason, the City delayed in processing the application until after the law had been changed to render the applicant ineligible. The court considered whether "an interim change in the law should affect the determination of a pending application for a bingo license which should have been issued prior to the change," and found that it should not. Id. at 67 (emphasis added).

As the language suggests, the court in Our Lady was motivated by the fact that petitioner's application would have been granted before the law changed but for the City's processing delay. Conversely here, Karl cannot assert that he would have received his license but for a delay caused by the City. To receive his Fire Suppression license, Karl needed not only to satisfy the experience requirements at issue, but also to pass the examination and additional investigations. 55 RCNY § 11-02(h). Because Karl did not have a pending application nor any clear eligibility for the license when the relevant laws changed, Our Lady is wholly distinguishable.

Similarly unavailing is Karl's argument that DCAS should be compelled to accept his application because the City failed to provide adequate advance notice of the change in law governing Fire Suppression license requirements. Specifically, Karl asserts the City did not announce the change until after the filing period for the March 2008 license exam had expired, making it impossible for him to sit for an exam before the July 1, 2008 effective date of the new law.

However, Karl was not entitled to any such advance notice. On the contrary, the Rules of the City of New York place the burden of acquiring information squarely on the applicant, stating that: "applicants should consult the Notice of Examinations for the specific position for which they are applying and [the] General Examination Regulations" and "are responsible for knowledge of the contents of those documents which are binding on all applicants." 55 RCNY § 11-01(a)(1). Through the Notice of Examinations, petitioner should have been aware that there was a limited filing period for the Fire Suppression examination and that any changes in the law after the filing period would apply to the next exam.

Nor can Karl's situation be compared to that of the civil service employees in Allen v. McNamara, 195 Misc. 146 (Sup.Ct., NY Co. 1949). In McNamara, a special law entitled discharged military personnel to take a competitive civil service exam which they had missed while on active duty. Their scores on the exam would determine their placement on a promotion list. The exam was given in two parts on dates set by Civil Service and petitioners took both parts and scored well on each. When applicants with lower scores were promoted and they were not, petitioners commenced a proceeding to secure a promotion. Civil Service opposed, claiming that the promotion list had expired before petitioners took the second part of the exam. Finding that respondents had a statutory duty to administer the exam consistent with the intent of the statute, and further finding that the petitioners had been denied a chance to take the second part of the test before the list expired through no fault of their own, the court held that petitioners were entitled to their rightful place on the promotion list as of the date of the first exam. Id. at 150.

In contrast in the instant case, as established above, Karl did not have a statutory right to apply for the Fire Suppression exam on a date certain. Nor did the City affirmatively act to deprive Karl of the opportunity to apply for the exam earlier. For reasons wholly within his control, Karl failed to file for the exam before the law changed.

No Manifest Injustice Will Result from the City's Actions

Yet another reason exists why Karl is not entitled to the requested relief. As the City correctly argues, "a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice." Bradley v. School Board of the City of Richmond, 416 U.S. 696 (1974) citing United States v. Schooner Peggy, 1 Cranch 103 (1801). Pursuant to the procedures outlined above, the City cannot render its decision on Karl's license application until after he passes the exam and qualifying investigations.

Karl insists that a manifest injustice would result from the application of the new law, as it would have the effect of advancing the effective date of the law and depriving him of the opportunity to obtain a more lucrative license without notice. The "manifest injustice" contemplated in Bradley related to the application of new laws to cases pending on appeal, a situation very different from the one Karl faces. Further, the City's decision to upgrade the requirements for the Fire Suppression license benefits the public by ensuring that individuals who design and install fire suppression systems have recent relevant experience. On balance, it cannot be said that the application of the new law results in a "manifest injustice."

The City has Not Violated the Citywide Administrative Procedure Act

Karl's last argument is that the filing period is unenforceable because it amounts to a rule promulgated without compliance with the Citywide Administrative Procedures Act (CAPA). However, the City persuasively argues that the filing period constitutes a "policy" not subject to CAPA, rather than a "rule." A policy is "any statement or communication which relates only to the internal management or personnel of an agency which does not materially affect the rights of or procedures available to the public." NYC Charter § 1041(5)(b)(i). In contrast, a rule involves the substantive standards used to determine when licenses are issued, suspended or revoked. NYC Charter § 1041(5)(a)(iii). As established above, the exam filing periods are set to facilitate the internal management of the agency and do not materially affect the rights of the public in general. The standard by which the applicant will be judged, including the experience requirement for a license, is a rule, but there is no dispute that the requirement was promulgated pursuant to CAPA as part of Local Law 33/2007. As such, the City's filing period policies fall within the scope of its authority, do not violate CAPA, and are fully enforceable.

Conclusion

Accordingly, it is hereby

ADJUDGED that the petition is denied and the proceeding is dismissed.

This constitutes the decision and judgment of this Court.