Opinion
0107438/2008.
August 18, 2008.
Judgment/Decision
In this CPLR article 78 proceeding, commenced by order to show cause, petitioner Raymond A. Castillo seeks a judgment directing respondent Police Commissioner Raymond Kelly to restore Mr. Castillo's premises residence handgun license, on the grounds that the revocation of that license was overly harsh and not rationally based, as well as directing respondent to consider a less harsh punishment. Respondent opposes the application, arguing that the determination is rational, not arbitrary or capricious and that the instant proceeding should be transferred to the Appellate Division, pursuant to CPLR 7803 (4) and 7804 (g). Petitioner has not submitted a reply.
Specifically, petitioner seeks to effectively annul the June 22, 2007 determination of the License Division of the New York City Police Department ("License Division"), which revoked his handgun license "based on [his] failure to abide by the Rules and Regulations governing [his] firearm license in that [he] unlawfully sold a handgun" (Verified Answer, Ex. P). Petitioner then appealed the June 22 determination, requesting a hearing.
In accordance with the Rules of City of New York Police Department (38 RCNY) § 15-22, a hearing to challenge the June 22 determination was held on January 10, 2008, pursuant to petitioner's request. At that hearing, petitioner appeared pro se, waiving his right to counsel, and testified on his own behalf. Police Officer Fitzsimon testified on behalf of the License Division at the hearing, where evidence was submitted.
The Rules of the City of New York Police Department (38 RCNY) § 15-22 (a) provide that:
A licensee shall be entitled to submit a written request for a hearing following issuance of a Notice of Determination Letter notifying the licensee of suspension or revocation of a license and the opportunity for a hearing.
In her determination dated January 16, 2008, the hearing office "recommended that the Premises Residence pistol license previously issued to Raymond Castillo remain revoked" (Petition, Ex. G, at 6). Thomas M. Prasso, the Director of the License Division, issued a final determination agreeing with the hearing officer's recommendation ( id., at 6; Ans., Ex. U).
"The transfer of a CPLR Article 78 proceeding is authorized when 'the substantial evidence issue specified in question four of section 7803' is raised and must be decided in order to dispose of the proceeding" ( Matter of Halperin v City of New Rochelle, 24 AD3d 768, 769 [2d Dept 2005], lv dismissed 6 NY3d 890; CPLR 7804 [g]; see also Cohen v. McGuire, 94 AD2d 664 [1st Dept 1983]). This specific issue is "whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence" (CPLR 7803).
Here, since the License Division's determination was based on the hearing officer's January 16, 2008, decision — reached after a hearing, where evidence and witnesses were presented — and the petition raises a question that calls for the parsing of evidence, this proceeding must be transferred to the Appellate Division (see Matter of Mason v. Dep't of Bldgs., 307 AD2d 94, 98 [1st Dept 2003]). Although this court must first "dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue," prior to transferring the proceeding to the Appellate Division (CPLR 7804 [g]; see Matter of Feierstein v. Klasfeld, 255 AD2d 161, 161 [1st Dept 1998]; Matter of Bush v Mulligan, 51 AD3d 663, 663 [2d Dept 2008]), petitioner fails to raise any such objections.
The petition at bar challenged whether the License Division's determination was supported by substantial evidence and, thus, must be transferred to the Appellate Division ( Matter of Robinson v. Ward, 181 AD2d 585, 585 [1st Dept 1992]). In particular, petitioner argues that the hearing officer improperly relied on Police Officer Fitzsimons testimony in determining that petitioner had failed to surrender his gun license to the License Division when he was terminated from his job on July 31, 2006. Additionally, petitioner claims that the License Division failed to "consider petitioner's societal contributions [.]"
Where a petition raises both issues of fact and law, the transfer of the proceeding to the Appellate Division, for disposition in the first instance, is proper ( Matter of Spilka Bus Corp. v Board of Educ. of City of New York, 83 AD2d 853 [2d Dept 1981]). Accordingly, it is
ORDERED that the application by petitioner seeking to vacate and annul a determination by respondent is respectfully transferred to the Appellate Division, First Department, for disposition, pursuant to CPLR 7804(g). This proceeding involves an issue as to whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction of law, is, on the entire record, supported by substantial evidence (CPLR 7803(4)).
The Clerk of the Court is directed to transfer the file to the Appellate Division, First Department, upon service of a copy of this order with notice of entry.
The foregoing shall constitute the decision and order of this court.