New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

Application for Pistol License Denied Due to Criminal History

In the Matter of Ralph Velez, Jr. v Robert M DiBella

Pursuant to Article 78, petitioner appealed a determination by the respondent denying his application for a pistol license.

According to Penal Law § 400.00(1), to be eligible for a pistol license, the applicant must be at least 21 years of age, have good moral character with no prior felony convictions or any other serious offense and there must be no good cause for denial of the license. Also, the pistol licensing officer may use his broad discretion and deny any applicant for any good cause.

Due to the petitioner’s criminal history, which consisted of six arrests and a conviction for disorderly conduct, the respondent determined that good cause existed to deny his application. Even though five of the six arrests were dismissed or resolved, the respondent still considered the circumstances surrounding each arrest.

Petitioner claims that the respondent acted improperly handing over his decision-making authority to the Westchester Department of Public Safety. However, the Westchester Department of Public Safety only provided the respondent with a recommendation of denial. In the respondent’s written decision, it clearly shows that the Department’s recommendation was not the sole basis for denying the petitioner’s application for a pistol license.

The court denied the petition and dismissed the proceeding without costs or disbursements.

Read more about this Article 78 case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78

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Matter of Jessica Coulter v State of NY Insurance Department

Petitioner brought about this Article 78 case to review a determination of the State of New York Insurance Department adopting the recommendation of a hearing officer and revoking petitioner’s insurance broker license in New York. Petitioner was charged with untrustworthiness and incompetence as an insurance producer based on her license being revoked by the state of New Jersey and her owing restitution and fines of over $100,000. Additional charges of misconduct included failure to remit payroll taxes to the IRS for a period of eight years and making a false statement under oath. After a hearing regarding these charges, the hearing officer recommended that petitioner’s license be revoked in New York and the Department adopted this recommendation. Petitioner then brought about an Article 78 appeal contended that there was not sufficient evidence to support the determination. The Court disagreed and felt that the evidence was, in fact, sufficient and the penalty of revocation was not disproportionate to the offences committed and thus, not shocking to one’s sense of fairness.

Accordingly, the Supreme Court confirmed the determination, denied the petitioner, and dismissed the proceeding, with costs.

Read more about this Article 78 employment case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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 The New York Times reports that Mayor Bloomberg has recommended streamlining the pistol license application process by having the NYPD Pistol License Division open one night a week and providing quicker approvals or denials of applications.  Read the article by clicking here  www.nytimes.com/2010/05/15/nyregion/15guns.html To view the rules click here nyc.gov/portal/site/nycgov/menuitem.c0935b9a57bb4ef3daf2f1c701c789a0/index.jsp

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John Arbuiso v. New York City Department of Buildings

In this Article 78 proceeding the Supreme Court of New York denied Petitioner’s request to annul respondent’s decision to deny petitioner’s application for reinstatement of his master plumber’s license. 

In 1999 Petitioner’s master plumber’s license expired, seven years later he requested reinstatement. Through written correspondence with the New York City Department of Buildings (DOB) Petitioner informed the DOB that he had been working as a plumber from 1997 to 2005 at various positions. The DOB denied petitioner’s application and requested that petitioner show active and legal engagement in the plumbing field during the time that his license was expired. 

After further correspondence from Petitioner about his work experience during the time his license was expired, the DOB concluded that Petitioner failed to clarify the legality of some of his work and his application was therefore denied. Petitioner then began an Article 78 proceeding, which was dismissed by the Supreme Court when they found that he failed to prove that Respondent’s decision was arbitrary and capricious. 

The one dissenting judge in this case argues that the Respondent’s denial of Petitioner’s application was inconsistent with the Administrative Code because Petitioner did indeed provide the necessary proof that he had retained proficiency. To force the petitioner to further clarify work experience is beyond the scope of the Administrative Code.

Read full article here.

To read about Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of Falco v. NYC Department of Health and Mental Hygiene

Petitioner, Michael Falco, brought about this Article 78 proceeding to challenge Respondent’s determination not to renew his mobile food unit license due to his vehicle inspection request being one week late. Falco is an honorably discharged military veteran who was permanently disabled while serving this country. For the past few years, Falco has been earning his living with a food vending machine. Falco filed his renewal application in a timely manner but due to a confusing regulation, he did not initiate the request for his vehicle to be inspectedwithin the specified time frame. Respondent denied his renewal license which led to Petitioner filing this appeal.

For the Respondent to force Petitioner, a disabled veteran, to lose his livelihood for being a few days late is arbitrary and capricious. Respondent’s claim that they do not have the discretion to inspect the vehicle after the six month period has passed is irrational. The decision to deny Petitioner’s license renewal for such a minor mistake is arbitrary, especially considering the laws in place concerning disabled military veterans.

Accordingly, the Court granted the petition and vacated Respondent’s determination to deny Petitioner a renewal license.

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Matter of Leto v. Mulvey

Petitioner, John Leto, brought about this Article 78 case to get the Court to annul the Nassau County Police Department’s (NCPD) decision to revoke his pistol license and reinstate his license. Leto was issued a Nassau County Pistol License in July of 2004. He lost his pistol license after a series of altercations with his ex-girlfriend that resulted in his arrest and an order of protection being issued.

On November 6, 2004, Petitioner followed his ex-girlfriend, Donna Composto, in his motor vehicle and repeatedly cut her off in traffic. He then called her on her cell phone and made inappropriate remarks. When Ms. Composto reached her destination, Petitioner harassed her in the parking lot, inside at the event she was attending, and after the event when Ms. Composto returned to her vehicle, he threatened her with a gun. Ms. Composto complained to the NCPD resulting in Leto’s arrest, an order of protection against him, and a suspension of his pistol license. In March 2005, Petitioner violated the order of protection and was arrest and charged with second degree criminal contempt.

Petitioner’s pistol license was revoked in March of 2007. Petitioner denied any wrong doing and submitted into evidence a letter from Ms. Composto recanting her prior accusation that Leto displayed a firearm on the evening of November 6, 2004. Petitioner argued that no weight should be given to the allegations of his ex-girlfriend due to the recantation letter and that he otherwise had a clean record. Petitioner also relied heavily on Schneider v. Mulvey where the Court vacated the NCPD’s revocation of a pistol license because petitioner was unable to cross examine a witness at his hearing. The Court argued that Petitioner was not denied the right to confront and cross examine Ms. Composto at the hearing. She was not in court because she was out of town. Petitioner could have given her a subpoena to appear in court or sought an adjournment.

Accordingly, the Court found the respondent’s determination to revoke Petitioner’s pistol license to be rational and neither arbitrary nor capricious.

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