Opinion
116470/2009.
Decided February 22, 2011.
Leonard J. Levenson, Esq., New York, NY, for petitioner.
Michael A. Cardozo, Esq., Corporation Counsel, by: Ji Kim, Esq., Special Assistant Corporation Counsel, New York City Law Department, New York, NY, for Respondents.
Decision and Order
Petitioner moves to reargue the Court's decision in the underlying Article 78 proceeding, which upheld respondents' denial of his gun permit application (Motion Seq. No. 002). Petitioner separately moves to enforce a stipulation of settlement dated March 26, 2010, negotiated without the Court's knowledge, and notwithstanding the pendency of a criminal charge, whereby respondents agreed that the License Division of the New York City Police Department would grant petitioner a limited carry premises business license, which would permit petitioner to maintain a handgun for protecting a business located in East New York, and which would permit petitioner to carry the handgun on his person for the sole purpose of traveling to and from a bank (Motion Seq. No. 003). This decision addresses both motions.
BACKGROUND
Petitioner Ali Asaede allegedly owns a liquor store located in central Brooklyn and allegedly owns a 99 cents store located in East New York in Brooklyn.
In late 2008, petitioner applied for a carry permit for a handgun. On June 17, 2009, his application for a carry permit was disapproved. The basis for the disapproval was set forth as follows:
"Your application for a Handgun License has been disapproved for the following reasons:
THE APPLICANT WAS ARRESTED 8 TIMES WITH ONE CONVICTION.
* * *
Applicant has also failed to show a sufficient need to distinguish self from countless others in every type of occupation in NYC who work without a license to carry a concealed weapon.
BASED UPON THE APPLICANT'S NUMEROUS ARRESTS AND ONE CONVICTION ON FILE, CAST GRAVE DOUBTS ON THE APPLICANT'S MORAL CHARACTER, FITNESS AND JUDGEMENT TO CARRY A HANDGUN IN NEW YORK CITY [ sic]."
Petitioner allegedly filed an administrative appeal on June 29, 2009, which was denied on August 5, 2009. According to the petition, the License Division investigator contacted petitioner after the initial disapproval and offered to grant a Premises Business License if petitioner chose not to continue with his application for a carry permit. Petitioner alleges that he rejected the offer. The Notice of Disapproval After Appeal states, in pertinent part:
"Your application for a Carry Business license does not demonstrate proper cause' as required by PL Section 400.00 (2) (f). You applied for a license in connection with your business, Baraka Food Corp, which is a retail store . . . in Brooklyn. You did not document any reason other than banking for traveling outside your business location that would require you to carry a concealed firearm. You were offered a Premises Business License that would permit you to have a firearm at your place of business but you declined that offer."
Petitioner commenced this Article 78 petition on November 23, 2009. On December 18, 2009, petitioner was arrested for (1) obstructing governmental administration in the second degree; and (2) after hours sale of alcoholic beverages. The criminal matter is pending in the Criminal Court of the City of New York, Kings County, People v Alsaede, Docket No. 2009 KN0100658.
By decision and judgment dated February 1, 2010, this Court denied the Article 78 petition and dismissed the proceeding. The decision states, in relevant part:
"Petitioner has not demonstrated that respondents acted arbitrarily or capriciously or contrary to law in disapproving petitioner's carry permit application. Respondents had a rational basis, given his arrest record (with one conviction of disorderly conduct on a guilty plea) and because he was unable to demonstrate need simply based on his claim that he lived in a dangerous neighborhood and made regular cash deposits. Petitioner's proffer of additional bank deposits cannot be properly considered ( see reply). This Court is bound to review the administrative decision based on what was before the administrative body."
Petitioner moved for reargument and reconsideration of the Court's decision, contending that the Court should have considered the additional bank deposits that were submitted in the reply papers, insofar as they were purportedly part of the administrative record (Motion Seq. No. 002).
After the motion was made, petitioner and respondents executed a stipulation of settlement, signed on March 26, 2010, unbeknownst to this Court. Pursuant to the stipulation, the case was to be discontinued, with prejudice, and without costs, expenses, with each side bearing its own legal fees. The stipulation of settlement states, in pertinent part,
"The NYPD's License Division will grant petitioner a limited carry business license. The scope of the license will be governed by the terms of this stipulation. Petitioner will also be bound by any applicable laws, rules and regulations governing pistols and pistol licenses. See Title 38 of the Rules of the City of New York ("RCNY")"
Kim Affirm., Ex B. The stipulation was neither so-ordered by the Court nor filed with the Court or with the County Clerk.
On April 28, 2010, petitioner purportedly served a "Renotice of Motion," seeking not only reargument "pursuant to the Notice of Motion filed on March 1, 2010," but also an order directing enforcement of the stipulation of settlement dated March 26, 2010 (Motion Seq. No. 003). Petitioner refers to this motion as a supplemental motion.
Meanwhile, in the criminal case, on petitioner's (criminal defendant's) motion, Judge Jacqueline D. Williams dismissed the charge of obstructing governmental administration in the second degree (Penal law § 195.05), by decision and order dated October 22, 2010, finding that it was inadequately pleaded.
The instant motions were repeatedly adjourned on consent, awaiting the outcome of the criminal case. However, citing the continued pendency of the criminal case, petitioner requested that this Court decide these motions.
I.
It would appear that the stipulation of settlement of March 26, 2010 was similar to the offer that petitioner asserts that respondents made after the License Division had originally denied petitioner's application. However, respondents argue that the settlement should not be enforced because the issuance of a limited carry pistol license would be contrary to the rules, statutes, regulations, and restrictions governing pistol licenses. Respondents candidly admit that they "overlooked" petitioner's arrest in December 2009, because the arrest occurred after the License Division had denied petitioner's appeal and after the Article 78 proceeding was commenced. Citing Parkview Associates v City of New York ( 71 NY2d 274), respondents argue that, because equitable estoppel may not be invoked against a municipal agency to prevent it from discharging its statutory duties, the stipulation may not be enforced.
Petitioner contends, and it is not disputed, that the Police Department and the investigator reviewing petitioner's license application knew of the criminal charges as far back as January 2010.
"It is well established that stipulations of settlement are strictly enforced, and a party will not be relieved from the consequences [thereof] unless it establishes cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident.' Stipulations may also be deemed unenforceable when they are "unreasonable", "against good morals" or "against sound public policy."
Matter of Roosevelt Raceway, Inc. v Board of Assessors, 161 AD2d 598, 599 (2d Dept 1990) (internal citations omitted).
Here, petitioner correctly indicates that respondents' unilateral mistake is an insufficient ground to set aside the stipulation of settlement on grounds of mistake. Respondents candidly admitted that the License Division had overlooked petitioner's arrest when the parties signed the stipulation. However, the analysis does not end there.
Enforcement of the stipulation of settlement, while the criminal prosecution is pending, would be against sound public policy. An applicant for a gun permit must "be of good moral character." 38 RCNY 5-02 (a). A conviction of the charge of after hours sale of an alcoholic beverage may bear upon a gun permit applicant's good moral character. Thus, to enforce the stipulation while the outcome of the criminal matter is pending would, in effect, require respondents to grant a gun permit to a person who ultimately might be found to have committed an illegal act that could indicate a lack of trustworthiness. Trustworthiness is a component of the good moral character that one must possess to be entrusted with a dangerous instrument.
In this Court's view, public policy would be offended if a municipality purports, even inadvertently, to waive this requirement. Cf. Salesian Soc., Inc. v Village of Ellenville, 41 NY2d 521, 526 (1977)("[I]t may be stated as a general proposition that public policy would be offended if a municipality purports, no matter how inadvertently', to waive a notice of claim requirement for an indisputably stale cause of action"); see Rampe v Giuliani, 281 AD2d 609, 610 (2d Dept 2001) (affirming declaration that a portion of a settlement was invalid, because it was inconsistent with state law and regulations)."The State has a substantial and legitimate interest and indeed, a grave responsibility, in insuring the safety of the general public from individuals who, by their conduct, have shown themselves to be lacking the essential temperament or character which should be present in one entrusted with a dangerous instrument." Matter of Lipton v Ward, 116 AD2d 474, 477 (1st Dept 1986), citing Matter of Pelose v County Ct., 53 AD2d 645 (2d Dept 1967), appeal dismissed 41 NY2d 1008 (1977).
Matter of Crooms v Corriero ( 206 AD2d 275 [1st Dept 1994]), which petitioner cites, is inapposite. In Matter of Crooms, the petitioner was granted a writ of prohibition against the Supreme Court Justice who vacated, on its own motion, the petitioner's guilty plea in the criminal action, which the court had previously accepted. The petitioner had pleaded guilty to the crime of Robbery in the Second Degree under count six of the indictment against him, and the Assistant District Attorney had acknowledged satisfaction with the allocution. The court had accepted the plea in return for a promised sentence of 3 to 10 years, and adjourned the matter for sentencing. At sentencing, a different Assistant District Attorney objected to the negotiated plea on the ground that the terms of the plea offer also required the petitioner to plead guilty to an additional count of sexual abuse. The court vacated the plea on its own motion. The Appellate Division granted a writ of prohibition, stating, "In the absence of fraud, once a court accepts a guilty plea, it has no inherent power to set aside the plea without the defendant's consent" Matter of Crooms, 206 AD2d at 277 (citation omitted). Insofar as Matter of Crooms concerned setting aside a guilty plea in a criminal matter, the case is not applicable. Double jeopardy and other procedural safeguards specific to criminal cases are not applicable to this civil action.
Therefore, petitioner's motion for an order enforcing the stipulation of settlement of March 26, 2010 is denied.
II.
Because the Court is not enforcing the parties' stipulation, which purported to discontinue this proceeding, the Court must address petitioner's motion for reargument and reconsideration.
Reargument is granted because the Court rejected petitioner's proffer of additional bank deposits to establish his need for a handgun permit. The prior decision, order, and judgment stated, "This Court is bound to review the administrative decision based on what was before the administrative body."
Although an Article 78 review of an administrative determination is limited to considering only the evidence that was part of the administrative record, the Court apparently overlooked that some of the additional deposits proffered had been included in the administrative record. In an affidavit annexed as an exhibit to respondents' opposition papers, Dena Lawrence, the investigator assigned to the License Division of the New York City Police Department, states that deposit receipts and bank statements for September 2008, October 2008, November 2008, December 2008, January 2009 and February 2009 were included in petitioner's file, and thus were part of the administrative record. Lawrence Aff. ¶¶ 2-7.
Reargument is granted so as to clarify that the administrative record included those deposit slips and bank statements for the period stated in Lawrence's affidavit. All other statements that petitioner submitted in the original petition and in reply papers are not part of the administrative record.
Upon reargument, the Court adheres to its prior decision, order, and judgment.
"The possession of a handgun is a privilege, not a right, that is subject to the broad discretion of the New York City Police Commissioner. A court may overturn such an administrative determination only if the record reveals no rational basis for it, and may not substitute its own judgment for that of the agency."
Matter of Tolliver v Kelly , 41 AD3d 156 , 158 (1st Dept 2007) (internal citation omitted). Here, respondents had a rational basis for disapproving petitioner's application, given his arrest record (with one conviction of disorderly conduct on a guilty plea). Petitioner has not demonstrated that respondents acted arbitrarily or capriciously or contrary to law in disapproving petitioner's carry permit application.
CONCLUSION
Accordingly, it is hereby
ORDERED that petitioner's motion to reargue (Motion Seq. No. 002) is granted, and upon reargument, the Court adheres to its prior decision, order and judgment; and it is further
ORDERED that petitioner's motion to enforce the stipulation of settlement (Motion Seq. No. 003) is denied.