Matter of Rampolla v Banking Dept. of the State of New York

Matter of Matter of Rampolla v Banking Dept. of the State of New York 2012 NY Slip Op 02040 Decided on March 20, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 20, 2012
Andrias, J.P., Sweeny, Moskowitz, Freedman, Manzanet-Daniels, JJ.
7117 110107/10

[*1]In re Robert Rampolla, Petitioner-Appellant,

v

Banking Department of the State of New York, et al., Respondents-Respondents.




Westerman Ball Ederer Miller & Sharfstein, LLP, Uniondale
(Richard F. Harrison of counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York (Ann P.
Zybert of counsel), for respondents.

Judgment, Supreme Court, New York County (Barbara Jaffe, J.), entered January 25, 2011, denying the petition to annul respondent Banking Department's determination, dated March 23, 2010, which denied petitioner's application for a mortgage loan origination license, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Respondent's determination denying petitioner's application for a mortgage loan origination license was not arbitrary and capricious. Petitioner contends that in determining his application respondent should have considered the factors set forth in Correction Law § 753, which pertains to the application for a license or employment of a person previously convicted of a criminal offense (see Correction Law § 752). However, Banking Law § 599-e provides, "Notwithstanding any other law, the superintendent shall not issue a mortgage loan origination license" to any applicant who has been convicted of a felony that "involved an act of fraud [or] dishonesty," except that "the superintendent may, in his or her discretion, disregard a conviction where the felon has been pardoned" (subd [1][b][ii]). Correction Law § 753, "a prior general statute," must "yield[] to [Banking Law § 599-e,] a later specific or special statute" (see Matter of Niagara County v Power Auth. of State of N.Y., 82 AD3d 1597, 1601 [2011], lv dismissed in part, denied in part, 17 NY3d 838 [2011] [internal quotation marks omitted]). While petitioner was granted a Certificate of Relief from Disabilities automatically imposed by law by reason of [*2]his felony conviction, pursuant to Correction Law § 701, he has not been pardoned. Therefore, the superintendent was required to deny his application.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 20, 2012

CLERK