Opinion
3792/10
01-13-2011
Janet Vincent, Petitioner, v. New York State Department of Environmental Conservation, Respondent.
PLTF'S/PET'S ATTY: DONIGER & ENGSTRAND, LLP By: D. Daniel Engstrand, Jr. Esq. 12 Bayview Avenue Northport, New York 11768 DEFT'S RESP'S ATTY: N.Y.S. DEPARTMENT OF ENVIRONMENTAL CONSERVATION Division of Fish , Wildlife & Marine Resources Bureau of Marine Resources 205 North Belle Mead Road/ Suite 1 East Setauket, New York 11733 Office of the Attorney General of the State of New York 300 Motor Parkway/Suite 205 Hauppauge, New York 11788
PLTF'S/PET'S ATTY: DONIGER & ENGSTRAND, LLP By: D. Daniel Engstrand, Jr. Esq. 12 Bayview Avenue Northport, New York 11768 DEFT'S RESP'S ATTY: N.Y.S. DEPARTMENT OF ENVIRONMENTAL CONSERVATION Division of Fish , Wildlife & Marine Resources Bureau of Marine Resources 205 North Belle Mead Road/ Suite 1 East Setauket, New York 11733 Office of the Attorney General of the State of New York 300 Motor Parkway/Suite 205 Hauppauge, New York 11788 Arthur G. Pitts, J.
Upon the following papers numbered 1 to 29 read on this motionarticle 78 Notice of Motion and supporting papers1-15; Notice of Cross-Motion and supporting papers___________ _________ Affirmation/affidavit in opposition and supporting papers 16-19; Affirmation/affidavit in reply and supporting papers 20-23 24-26/27-28; Other29; (and after hearing counsel in support of and opposed to the motion) it is,
ORDERED that the petitioner Janet Vincent's motion, pursuant to CPLR Article 78, for a judgment vacating, reversing and annulling the decision of respondent New York State Department of Environmental Conservation dated November 30, 2009 which denied her application allowing for the transfer and re-issuance of Raoul Vincent's commercial summer flounder permit to her, on the grounds that said determination was arbitrary, capricious, an abuse of discretion and made by error of law, is denied under the circumstances presented herein.
Raoul Vincent was the holder of a summer flounder commercial harvesters permit as well as a commercial lobster permit, both of which were issued by the respondent New York State Department of Environmental Conservation. ( "DEC") Vincent died on August 31, 2008. Prior thereto, on August 23, 2007 Vincent executed a written statement requesting that upon his death, his lobster permit be transferred to his daughter Monique Palino. However, in said statement no reference was made regarding a transfer of his commercial summer flounder permit. Upon his death the respondent transferred the commercial lobster permit to Monique Palino but refused to grant the transfer of the commercial summer flounder permit.
Letters of Testamentary were issued to petitioner Janet Vincent as to the Estate of Raoul Vincent on December 17, 2008. By letter to the respondent dated October 7, 2009 the petitioner, as executrix of the estate, sought the transfer of the commercial summer flounder permit to her, referring to the residuary clause of the decedent's Last Will and Testament which provided as follows:
All the rest, residue and remainder of my property and estate, both real and personal, of every kind and description, in whatsoever, and wheresoever the same be or be situate, in this State and County, or in any other, and whether in possession or expectancy, thatI may die seized or possessed of, or in any way entitled to at the time of my death, I give, devise and bequeath unto my beloved wife, JANET LOIS VINCENT, absolutely and forever.
By letter dated November 30, 2009 the petitioner's request was denied. In denying the request the respondent cited Environmental Conservation Law section 13-0328 which specifically restricts the issuance of non-transferable commercial fishing licenses to individuals only, said permits expire on December 31st of the year of issuance or upon the death of the individual license holder. The respondent further acknowledges in its decision that Environmental Conservation Law section 13-0328 (6) (a) does allow for an exception where the permit may be reissued to a family member provided that the license holder designate in writing the person he wishes to have the license reissued to in the event of his death. However, because the decedent did not specifically make a written request to have the commercial summer flounder permit reissued, the permit expired upon his death. The permit was not specifically identified in his Last Will and Testament, and as such, the residual clause of the Will does not suffice to authorize such reissuance.
The petitioner submits in support of the instant application that the permit was a personal property right of the decedent which was transferred to her pursuant to the residuary clause of the Will. She further avers that the determination of the respondent denying such reissuance without a written designation by the decedent is arbitrary and capricious and an abuse of discretion.
" In article 78 proceedings, 'the doctrine is well settled, that neither the Appellate Division nor the Court of Appeals has power to upset the determination of an administrative tribunal on a question of fact; * * * 'the courts have no right to review the facts generally as to weight of evidence, beyond seeing to it that there is substantial evidence.' (Cohen and Karger, Powers of the New York Court of Appeals, s 108, p. 460; 1 N.Y.Jur., Administrative Law, ss 177, 185; see Matter of Halloran v. Kirwan , 28 NY2d 689, 690, 320 N.Y.S.2d 742, 743, 269 N.E.2d 403 (dissenting opn. of Breitel, J.)). 'The approach is the same when the issue concerns the exercise of discretion by the administrative tribunals The courts cannot interfere unless there is no rational basis for the exercise of discretion or the action complained of is arbitrary and capricious.' (Cohen and Karger, Powers of the New York Court of Appeals, pp. 460—461; see, also, 8 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 7803.04 Et seq.; 1 N.Y.Jur., Administrative Law, ss 177, 184; Matter of Colton v. Berman , 21 NY2d 322, 329, 287 N.Y.S.2d 647, 650—651, 234 N.E.2d 679, 681). The arbitrary or capricious test chiefly 'relates to whether a particular action should have been taken or is justified * * * and whether the administrative action is without foundation in fact.' (1 N.Y.Jur., Administrative Law, s 184, p. 609). Arbitrary action is without sound basis in reason and is generally taken without regard to the facts. In Matter of Colton v. Berman (Supra, p. 329, 287 N.Y.S.2d p. 651, 234 N.E.2d p. 681) this court (per Breitel, J.) said 'the proper test is whether there is a rational basis for the administrative orders, the review not being of determinations made after quasi-judicial hearings required by statute or law.........." Matter of Procaccino v. Stewart , 25 NY2d 301, 304 N.Y.S.2d 433, 251 N.E.2d 802; but see Matter of Picconi v. Lowery , 35 AD2d 693, 314 N.Y.S.2d 606, affd. 28 NY2d 962, 323 N.Y.S.2d 703, 272 N.E.2d 77). Rationality is what is reviewed under both the substantial evidence rule and the arbitrary and capricious standard. ( Matter of 125 Bar Corp . v. State Liq. Auth ., 24 NY2d 174, 178, 299 N.Y.S.2d 194, 197—198, 247 N.E.2d 157, 158—159; 1 N.Y.Jur., Administrative Law, s 184.)" ( Pell v . Board of Education , 34 NY2d 222, 356 N.Y.S.2d 833, 839-840 [1974] )
In the matter at bar, the actions and determination of the respondent clearly do not rise to the arbitrary and capricious standard as set forth above. In the Matter of Daxor Corporation v . NewYork State Department of Health , 90 NY2d 89, 659 N.Y.S. 2d 189 [ 1997] the Court of Appeals held that in determining whether a state issued license is a property right owned by an individual, the focus must be on the relevant statutes and regulations that created the benefits which arise from the issuance of the license. Discretionary benefits issued by the State do not give rise to a property right. Herein, upon review of the applicable statutes it is clear that the issuing agency, the respondent DEC, retains substantial discretion over the issuance, retention and transfer of the commercial fishing permit. As such, a property right to the permit has not been established and the right to the permit cannot be transferred pursuant to the residuary clause of the decedent's Will.
The petitioner's further submission that the action of the respondent in denying the request of the transfer of the permit absent an written designation of the decedent was arbitrary and capricious because they failed to consider other documents later submitted by the decedent is also without merit. The applicable statute clearly provides for an exception allowing the transfer of the permit to a family member provided that the statute's requirements are complied with. The statutory requirement that a written designation by the decedent of a family member he wishes to the permit to be transferred to was not complied with. As such, the respondent's determination denying the request was based upon a rational basis and cannot be deemed arbitrary and capricious.
Accordingly, pursuant to the foregoing and under the circumstances presented herein, the petition is dismissed
This shall constitute the decision and order of the Court. Settle judgment. So ordered.
Dated: Riverhead, New York January 13, 2011