Opinion
270 CA 19-00298
07-24-2020
In the Matter of MARK CERRONE, INC., Petitioner-Respondent, v. Howard ZEMSKY, as Commissioner of New York State Department of Economic Development, Respondent-Appellant.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF COUNSEL), FOR RESPONDENT-APPELLANT. MAGAVERN MAGAVERN GRIMM LLP, NIAGARA FALLS (EDWARD P. PERLMAN OF COUNSEL), FOR PETITIONER-RESPONDENT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF COUNSEL), FOR RESPONDENT-APPELLANT.
MAGAVERN MAGAVERN GRIMM LLP, NIAGARA FALLS (EDWARD P. PERLMAN OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and the petition is dismissed.
Memorandum: Respondent appeals from a judgment granting petitioner's petition pursuant to CPLR article 78 to, inter alia, annul a determination denying petitioner's application for recertification as a woman-owned business enterprise ( [WBE]; see Executive Law § 310[15] ; 5 NYCRR 144.2 ). As an initial matter, because the judgment obligates respondent to recertify petitioner as a WBE through June 1, 2021, we reject the contention of both parties that the appeal is moot in light of a post-briefing change in petitioner's ownership structure (see generally Matter of Veronica P. v. Radcliff A. , 24 N.Y.3d 668, 671, 3 N.Y.S.3d 288, 26 N.E.3d 1143 [2015] ). On the merits, we agree with respondent that the challenged determination is not arbitrary or capricious inasmuch as it was rational to determine that petitioner was not being operated by the woman claiming ownership thereof (see Matter of J.C. Smith, Inc. v. New York State Dept. of Economic Dev. , 163 A.D.3d 1517, 1519-1520, 83 N.Y.S.3d 770 [4th Dept. 2018], lv denied 32 N.Y.3d 1191, 95 N.Y.S.3d 144, 119 N.E.3d 784 [2019] ). Petitioner's alternative ground for affirmance lacks merit (see Matter of Casella v. Crosson , 178 A.D.2d 963, 963-964, 578 N.Y.S.2d 322 [4th Dept. 1991] ). We therefore reverse the judgment and dismiss the petition.