Matter of Acosta v Kelly

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Matter of Acosta v Kelly 2005 NY Slip Op 30488(U) April 5, 2005 Sup Ct, NY County Docket Number: 101573/04 Judge: Doris Ling-Cohan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON411112005 SUPREME COURT OF THE STATE OF NEW YORK- NEW YORK COUNTY PRESENT: Hon. DORIS LING-COHAN, Justice In the Matter of the Application of SANITATION POLICE OFFICER EFRAIM ACOSTA, INDEX NO. 101573/04 MOTION DATE MOTION SEQ. NO. 001 MOTlON CALNO. Petitioner, For a Judgment pursuant to Article 78 of the Civil Practice Laws and Rules, - against PART 6 2 - RAYMOND KELLY, Police Commissioner of t h e City of New York, Respondent. The following papers, numbered 1 to 8 were read on this Article 78 Proceedlng to: annul respondent s determination denying petltioner s appllcation for a carry pistol license. Papers Numbered Answering Affidavits - - Petition + Notice of PetitionlOrder to Show Cause Exhibit8 -12 3 Exhibits (Memo) Replying Affldavits (Reply Memo) -. 4 Additional Submlssions: Petitioner s Letters (wlenclosures) dated June 2. 2004 and August 10,2004, Afflrmation of Melanie V . Sadok, Esq., dated July 1, 2004, on behalf of Respondents, Petltioner s Second Reply Affirmation Cross Motion: [ 1 Yes -5.6.7,8 [XI No Upon the foregoing papers, it is ordercd that this petition is denied and thc proceeding is dismissed. Back qroun d Petitioner, Efiaim Acosta, had been employed by the New Yol-k City Department o l Sailitation (DOS) since 1981, He served as a member of the Sanitation Policc of DOS since in or about 1986. On or about March 28, 2003, petitioner rctired as a sergeant from the Sailitation Police (Respondcnt s Verified Answer [Answer], Ex. L). Petitioner possessed a pistol liceiise while cinployed by the Sanitation Police. 1 [* 2] Shortly belore his retirement, pctitioncr subniittcd to the Liceiise Division of thc New York City Police Department (NYPD) an application for a pistol license, dated March 24,2003 (Answer, Ex. U). His applicatioii indicated tliat he was seeking a Retired Police Officer license or a Carry Business pistol license, both of which are unrestricted licenses allowing thc holder to carry a concealed weapon at all times (id. Petitioner described both his business and his occupation as j. Retired NYC Sanitation Police Officer (d.). In support o ¬petilioner s application, Chief James Moss of the Sanitation Police F. T. U.(Fireaims lactics rl raini~ig Unit) & Training Section subinitled a letter, dated March 20, 2002 (should bc 2003), dcscribing petitioner s duties during his ycars of scrvice with the Sanitation Police (Answer, Ex. Dj, Chief Moss indicated that petitioner s last assigiiiiiciit prior to his retircment was as instructor with the F. T. U. training officers and cadets, including training in the usc of firearms. He also auctioned vehicles that had been iinpouiided for illegal dumping (id., Prior to liis training assignment, petitioner was assigned to [lie j Night Task Force, in which his duties iiicluded inipounding vehiclcs that had illegally dumped waste materials and arresting individuals involvcd in such activities. Chief Moss stated tliat, during petitioner s tenmc with tlw Sanitation Police, <lie was personally involved in countlcss numbers of vehicle iiiipouiids aiid arresls, soine of which wcrc organizcd crime related, along with countless iiuinbers o l suiiiiiionses to the Private Carting Industries (idj. Chief Moss further described petitioner as an exemplary oIficer who is dcserviiig of the 24 hour firearnis cany for his and his family (sic) protection (id.). Petitioner s attoniey charactcrizcd the letter from Chief Moss as a good guy letter, which thc Licensc Division and rcspoiident Police Commissioner Raymond Kclly (respondent or Commissioner) allegedly customarily ha[ve] accepted from Retired Sanitation Police Officers in support o r thcir applications for unrestricted carry pistol liccnscs (Reply Affrmatioii of Jerold E. Levine, Esq. [Levine Reply Aff,], at 7 7 6,7). Petitioner submitted, in further supporl of l i s pistol license application, additional lcttcrs from supervisors and colleagues in the Sanitation Police and otlicr documents substantiating the quality o r liis work and his good character (Answer, Ex. E). 2 [* 3] hi accordance with the applicable regulations and procedures, the License Division conducted an investigation of petitioner s background, including a personal interview. Petitioiicr indicatcd that hc was scckiiig an unrestricted carry business pistol license for protection, based upon his prior occupation as a Sanitation Police Officcr (SPO) (see Answer, Exs. H and 1). The License Division sent to petitioner a Notice of Disapproval of his handgun license application, dated August 7, 2003. The Notice provided the following reasons for denying pelilioner s application: ACCOlIDING TITLE 38, CHAPTER 5-03, YOU ARE REQUTRED TO SHOW 10 PROPER CAUSE PURSUANT TO 400.00 (2)(f) OF THE NEW Y O N STATE PENAL LAW. BASED ON YOUR RETlIiEMENT FROM THE NYC SANTTATTON POLICE, YOU HAVE FAILED TO SHOW SUFFICENT NEED TO DISTINGUISH SELF FROM COUNTLESS OTHERS IN EVERY TYPE OF OCCUPATION T NEW YORK CITY N WHOM (sic) WORK WITHOUT A LICENSE TO CARRY A CONCEALED WEAPON. (Answer, Ex. K). The Notice of Disapproval advised petitioner of his right to an administrative ap p ea1. P etitioner Iiad apparently learned, in advance, that his pistol license application would be disapproved. In anticipatioii of the disapproval, he sent to the License Division an advance appeal lcttcr, datcd July 15, 2003 (Answer, Ex. J). In this one-page notarized letter, petitioner challenged the conclusion of the License Division that he had failed to show sufficient necd for a c a n y business handgun license to distinguish hiinself li-om countless other New York City residents who work without a licciise to mi-ry a conccaled weapon (id.).FIe rcfcrred to the description ol17is duties whilc ciiiploycd by the Sanitation Police in thc letter from Chicf James Moss, a copy o r which he enclosed. Petitioner explaincd, in his July 15 letter, that lie was seeking the haidguii license for the safety of his family and himsell; due to the fact that he had made thousands of impounds and numerous arrests for illegal dumping during the years he was employed by the Sanitation Police (id.). Petitioner described his need [or a license to carry a concealed weapon, as follows, While car~ying my daily activities on and off duty, on occasion, I have seen out hi defendants who were involved in impoundments/awests (id,). further support of petitioner s appeal, DOS Chief of Staff Michael A. Bimontc submitted a letter, dated September 19, 2003, 3 [* 4] describing petitioner s duties while employed by the Sanitation Police and citing instances of his exemplary service (Answer, Ex. L). This is another example of a letter, characterized by petitioner as a good guy letter. 017 or about September 19, 2003, the License Division offcred petitioner a premises rcsidence liandgun license, a more restricted liccnsc than the carry business license he liad applied lor, Pctitioiier declined to accept the premises residence license (Answer, Ex, M). In a letter dated Scpteniber 30, 2003, Thoiiias M. Prasso, director of tlic License Division, advised petitioner that his appcal of his carry business liccnsc application was denied, based upon review 01the entire record (Answer, Ex. N). Petitioncr was notified o r his rjglit to appeal this detenniiiation by cormnencing an Article 78 Proceeding in Suprciiie Court, within four months of the date of the dc.nia1letter. Accordingly, peti tioner coiiiiiienced the instant procecding, seeking to aivlul rcspondent s cleteiminatioii denying his application for an unrestricted carry handgun license. Discussion 1. Relevant Statutory and Reculatory Provisions Petitioner asscrts that he is entitled to an unrestricted carry handgun license, based upon his status as a retired Sanitation Police Officcr. He attempts to aiialogize his situatiori to that of a retired New York City police office. There are, however, significant distinctions between the eligibility of police officers and Sanitation Police Officers for handgirii liceiiscs, pursuant to the applicable staMory and regulatory provisions and NY PD policies. Active police officers, as defined by Criminal Procedure Law (CPL) 5 1.20, do not require a license to carry a handgun (see Affirniation of Melanie V. Sadok, Esq. [Sadok AI ¬,], Subniitted by Respondent in lurthcr Opposition to tlic Petition, Ex. D). Officers aiid members ofthe Sanitation Police of the New York City DOS, however, are not considered to be police officers, but, rather, are classified as peace officers pursuant to CPL 5 2.10 (59). That statutory provision fuither slates, in pertinent pal?, nothing in this subdivision shall be deemed to authorized such officer to cany, possess, repair or dispose o r a fircarm unless the appropriate license thereror Iias been issued pursuant lo section 4 [* 5] 400.00 of tlie penal law (CPL 6 2.10 [59]). Accordingly, in contrast to an activc police officer, who is eIigibIe for to cany a handgun without applying for a license, an active Sanitation Police Officer must apply to tlie License Division for a handgun license and must fulfill the requirements for such a license set foi-th in Section 400.00 of thc Pcnal Law and the applicable regulations. Section 400.00 of the Penal Law is tlie statutory framework regulating thc issuance of firearm licenses. Penal Law 5 400.00 (1) scts roitli the gcncral cligibility requirements for fircarni licciiscs, including: no prior convictioiis of it felony or a serious offense, good moral character , disclosure of whether the applicant has suffered ii-om a ineiital illness or has bcen confined to a hospital or instilution for such ail illness and no good causc cxists for the denial of the license (see Penal Law tj 400.00 [ I ] [b], [c], d] and [g]). Penal Law 0 400.00 (2) describes the lypes of licenses which may be issued to possess a liaiidguii (pistol or revolver). The calegories orliccnses include rcstricted liccnscs, allowing the holder to possess a liaiidguii in his or her home or authorizing a mcrchant or storekecper to possess a handgun in a place of business (Penal Law $ 400.00 [2] [a] and [b]). hi addition, the statute authorizes thc issuaiicc of an uiircstricted license for a handgun to Iiclvc and carry coiiccaled, without regard to eiiiployment or place of possession, by any person when proper c m s u exists f o r the isszrnnce thcreuf (Pcnal Law 0 400.00 [2] [f]) (emphasis supplicd). Petitioner applied for such 311 unrestricted carry handgun license. Thc respoiidciit Police Comniissioner is authorized to grant am1 issue liccnses to carry or possess liandguiis within the City of New York pursuant to the provisions of Penal Law 8 400.00 (Administrative Code o r City of NY 4 1 0-1 3 1 [a]). The License Division of tlic NYPD is delegatcd the respoiisibility to review applications for original and renewal haiidguii licenscs. Title 38 of the Rules and Rcgulatioiis of the City of New York (RCNY) prescribes the rulcs for the issuance of handgun licenses by thc N Y P D withiii the City of New York. The various typcs of handgun licenses which may be issued arc dcscribed in 38 RCNY 5 5-01. These include various restricted licenses, including a Prciiiises License - Residence or Business (% restricted handgun license issued hr a specific busiiicss or residence location ) (38 RCNY o 5 6 5-01 [a]) and a Carry [* 6] Guard Z,icense/Gun Custodian License ( restricted types of carry licenses, valid when the holder is actually engaged in a work assigniiiciit as a security guard or gun custodian ) (38 RCNY 8 5-01 [d]). Pctitioiicr, howcvci-, has applicd for a Carry Busiricss License , defined as an unrestricted class of license which pcrmits the carrymg of a handgun concealed on the person (38 RCNY 6 5- 01 [b]). The regulations Ptirther provide, hi the event that an applicant is not found by the License Division to bc qualificd .for a Carry Business License, the License Division, based upon its investigation of the applicant, may offer a Limited Carry Business Liccnse or a Business Premises License to an applicanl (38 RCNY lj 5-01 [b]). The regulatioiis in 38 RCNY tj 5-02 prescribc tlic criteria for the issuance of a preiniscs handgun Iiceiisc, which includc iiiany of tlic eligibility standards set forth in Penal Law 400.00 (1). The regulations in 38 RCNY 4 5-03 ( Carry and Special Handgun Licenses ) provide that [iln addilion lo the requirements in Ij 5-02, an applicant seeking a carry or special handgun liccnse shall be required to show propcr cause pursuant to 5 400.00 [2] [fl of the New York State Penal Law. The rcgulatioiis f~irther statc, Proper cause is determined by a review of all relevant information bearing on the claimed iiccd of the applicant for the license. Section 5-03 provides the following examples of factors to be coiisidcred in a review of the information to determine whether an applicant has shown the requisite proper cause for the issuance of a carry or special handgun license: (a) Exposiire of the applicant by reason of employnent or business necessity to extraordinary persoiial danger requiring authorization to carry a handgun. Example: Einploynent in a position in which the applicant routinely engages in traiisactions involving substantial amounts of cash, jewelry or other valuables or negotiable items. ... (b) Exposure of the applicant to extraordinary pcrsoiial danger, documented by proof of recuri-cnt tlircats to lire or safety requiring authorization lo carry a handgun. (Examples of proof to be consjdered by the License Division include Police Department records dcmonstrating that the life and well being oP an individual is endangered .) 6 [* 7] Sectioii 5-05 of tlie regulatio~is prescribes tlie requirements for handgun liceiisc applications. In addition to completing an application form, applicants for handgun licenses, other than a Pre misesResidence License, niusl submit a letter of necessity , a signed, notarized typewritten letter cxplaiiiing the need for the license and containing information, including [a] detailcd desc~rjptionof the applicant s employment and an explanation of why thc employment requires the carrying o f a conccalcd handgun (38 RCNY 5-05 [b] [8] [i] and [ii] [A]). The regulatioiis do not prescribe a category of handguns licenses for retired police oPIiccrs and peace officers. l a memoi-andum dated September 25, 2002, thc License Division clarified the n guidelines for the issuance of handgun licenses to activc and rctircd police officers and peace officers (Sadok Aff., Ex. D). As has been discusscd above, active Police Officers, defined in CPL $ 1.20, do not require a liceiise to carry a weapon. The samc rule applies to active Pcace Officers, defined in CPL 5 2.10, except those granted Peace Officer status with restriction that they not be aiitliorized to carry, possess, rcpair or dispose o h firearm uiilcss the appropriatc liccnse therefor j. has been issued pursuant to scction 400.00 of tlic penal law (id. The latter category of Peacc Officers iricludes officers and inembcrs of the Sanitation Police, likc petitioner (see CPL $2.10 [591). Tlic License Division memorandum further provides, Peace Officers in this category must be license d by tlic Licmsc Division in order to lawfully possess a handg~m.Thc appropriate liceiisc in this sitiiatioii is a Carry Guard/Security license (id.), Such a licciise will only be issucd if the peacc ofiiccr/applicant meets all of the applicable legal requirements. Thc License Division niemorandum further states that applicants who, in addition to any peace officer status, can show and the exjstoicc of extraordinary circ~uiiistances proper cause, may be granted a Carry Business licciise notwithstanding the above guidelines (id. j. The Lkense Division meiiioraiiduni then djscusses guidelines for issuing handgun licenses to retired law enforcenieiit officers. Retired Police Officers (CPL 4 1.20), retired Fcderal Law .Enforcen~eiit Officers (CPL S; 2.15) and retired Peace Officers without hfuidguii restrictions (CPL 5 2.10) may qualify for the appropriatc retired law enforceiiient license (Sadok Aff., Ex. Dj. T11c 7 [* 8] memorandum provides, howcver, Pcacc Officcrs who possess a Cat-ry tiuard License (which include Sanitation Police Officers) will not qualify for a rctircd law enforcement handgun license upon leavj ng their cmploymeiit. However, an application for a Residence Premises Handgun (parcntlietical supplied). Thc Licciise Licerise will be accepted from these individuals (id.) Division s September 2002 memorandum, thus, clearly states lhat retired Sanitation Police Orficers, iinlike retired Police Officcrs, do not autorimtically qualify lor a retired law ciiforccnicnt handgun licensc. Instcad, thcy must apply for a handgun license, Mfill the requirements oPPenal Law 9 400.00 and the applicable regulations and will generally be granted a restricted Residence Premises handgun liccnse, instcad of the uiirestiictcd Carry Business license sought by petitioner . 2. Legal Analysis It is well settlcd that tlic issuancc o r a handgun liceiisc is a privilcge, rather than a righl (see Matlcr o Pupaiounnou v Kelly, - AD2d f , 788 N Y S 2d 378 [ 1 Dept 20051; Mutter o Kaplnn v f Briilton, 249 AD2d 199, 201 [ 1st Dept 19981; Matter of Fondncaro v Kelly, 234 AD2d 1 73, 177 [I Dept 19961, lv clenierl 89 NY2d 81 2 [ 19971; Sewell v City o New York, I82 AD2d 469,472 [ lst f Dept 19921, l v denied 80 NY2d 846 [ 19923). Thc respondcnt Police Cominissioner has broad discretion lo determine whether the issue a handgun license, in accordance with the provisioiis of Penal Law 4 400.00, Administrativc Codc of tlic City of NY 10-131 (a) and tlic applicable regirlations (see Sewell v City of New York, 182 AD2d at 472; see ulso Mutter o Pnpnionnnou v f Kelly, 785 NYS 2d at 378; Mdter of Fondncaro v Kelly, 234 AD2d at 177; Sewell v City of New York, 182 AD2d at 472). Judicial review is liniitcd to whether the respoiidcrit s administralive determination to dcny petitioncr s application for a carry liandguii license is arbitrary aiid capijcious Petitioner was granted a Carry Guardsecurity handgin license during most o r his tenure with the Sanitation Police (Answer, at 7 7 20-21 and Ex. B). According to tlic records of the License Division, however, petitioner was granled a Carry Business handgun license durinz the last several years of his tenure, from on or about August 12, 2000 until on or about April 2, 2003, after his rctircineiit (Answcr, at 7 22, 11 1, aiid Ex. C). In accordance with the guidelines set forth in the License Division s September 2002 meniorandiim, however, petitioner was in a catcgory of peace officers who were no1 automatically eligible for retired law enforcement handgun licenses. Instcad, the License Division, pursuant to the guidelines in the memorandum, offered petitioner a Residence Premises handgun license, which he decliiicd (Answcr, at 7 33, and Ex. M). 8 [* 9] or an abuse of discretion (see Mutter of Pnpnzotrunnou v Kelly, 788 N Y S 2d at 379; Mutter of Fonduoaro v Kelly, 234 AD2d at 177; Sewell v City oJ New York, 182 AD2d at 473). h applying this standard, the h c t i o i i of the courts is to ascertain whcther there is a rational basis for the agency s action (see Matter o Pell v Ronrd o Educ., 34 NY2d 222, 23 1 [ 19741). The Court of f f Appeals explained, Arbitrary action is without sound basis in reason and is generally taken without rcgard to the facts (Matter of Pel1 v Board o Educ., 34 NY2d at 23 1). Neverthclcss, as the f Appellate Division stated in Matter of Kuplan v Brutton (249 AD2d at Z O l ) , [t]he agency s determination iiiust bc upheld if the record shows a rational basis for it, even where the court might havc reached a contrary result [citation ornitled]. Respondent s reason for dciiying petitioner s application for an uilrestrictcd carry busincss handgun license is that he hiled to show proper cause , as required by Pcnal Law fj 400.00 (2) (0 and 38 RCNY 5 5-03. The applicant, in this case petitioner, has the burden to dcnionstrate proper cause loor thc issuaiice of an unrestricted carry handgun licciisc, which the Appellatc Division has iiiteiyrctcd to mean a special need for self-protection distiiiguishable from that of the general coinrnuiiity or of persons engaged in the same profession (Mutter of Kcplan v Brulfon,249 AD2d at 201, quotirzg Mutter of Kleriosky v New Yorlc City Police Dept., 75 AD2d 793 [ 1 Dept 19801, ~ f l d NY2d 685 [1981]). 53 Petitioner s applicatioii does not meet this standard. His original application did not contain a signed, notarized letter of necessity explainiiig his need to carry a concealed handgun, as rcquircd by 38 RCNY 5 5-05 (b) (8) (i) and (ii) (A). Petitioncr s letter of July 15, 2003, submitted to providc advaiicc support for his appeal, indicates that his need for an unrestricted carry handgun liceiise to protect hiinsell and his fdmily is based on his prior eniployiuciit with the Sanitation Police, during which he made thousaiids of vehicle iiiipouiidincnts and nuiiicroiis arrests for illegal dumping. Petitioner s lettcr vaguely states that on occasion , he lias seen iinideiitified defendants involvcd iii these prior inipoundments and aircsts, but fails to evcii assert that his safety was evcr threatened on thcse occasions (Answcr, Ex. J). Petitioncr s explanation does not 9 [* 10] iiicet thc standard for proper cause for an unrestricted carry handgun license, as has failed to deinoiistratc that he is exposed to cxtraordinary personal danger , either by virtue of his currcnt employmelit or business, or as the result oIdocuiiientcd threats to his lifc or safety (see 38 RCNY 5-03 [a] and [b]; sec ulso Muller of Sunzowicz v Kelly y- g AD2d -, 787 N Y S 2d 654 [lSt Dept 20051 [owner/ dircctor of a fiineral hoime failed lo demonstrate need for a carry pistol permit, by establishing shc was in grealer daiigcr than others engaged in a similar occupation, or that she had to carry large wins of cash jii coniieclioii with hcr business]; Matter o Martinelc v Kerik, 294 AD2d f 221 11 Depl20021, qfjiI98 NY2d 613 [ZOO21 [bank presideiit failed to show proper cause for a carry pistol pci-mit, as the result oftraveling to and horn high crime areas and transporting large s u n s of cash between branches, as lie failed to provide docuiiicntation substantiating the amount of cash lie carried or of particular threats or other extraordinary danger to his personal safcty]; Mutter ofFcrrara v SaJir, 282 AD2d 383 [ lStDept 20011 [chief executive officer of celebrity bodyguard service failed to show extraordinaiy pcrsonal danger or other special nced for se11f protcction distinguishable from that of the general community ]; Mutter o Kuplnn v Rratton, 249 AD2d at 201 [physician s general allegatioiis that she nccded to protect herself when traveling in high crime arcas late at night to see patients did not establish aii extraordinary threat to her safety requircd to obtain a carry pistol liccnse]). Nolwithstaiiding his failure to deiiionstr-ate proper cause lor an unrestiicted carry handgun license, based upoii exlraordiiiary danger 10 his personal safcty, petilioiier asserts that he is entitled to such a license by virtue o r respondent s purported practice of granting carry handgun licenses to other retired Saiiitation Pol ice Olficers, whose circunistanccs are allegedly factually similar. According the Verified Petition, Petitioner has no different need for the license than numerous other Retired Saiiitation Policc Officers who hold such licenses (Verified Pet., at 1 9). Petitioner 1 further asserts that rcspondent custoiiiarily has issued carry handgun liceiiscs to both former police officcrs and former Saiiitation Police OIficers, who have retired i 1 good standing, as administrative perks for service in law ciiforcerneiit (Levine Reply Aff,, at 1 4, n 1). The alleged need basis for 1 10 [* 11] issiiiiig such licenses is that retired law cnforcenieiit officers may come in contact with individuals whom they have pi-cviously summonsed or airestcd (id.).Petitioner further asserts that other Retired Saiii tation Police Officers havc rcceived carry business handgun licenses based solely upon: (1) thcir rctired law enforcement status; and (2) submission to the License Division of good guy letters froiii their superiors describing their duties while employed with the Sanitation Police and their exeniplary service, siiiiilai to thc letters submitted in support of petitioncr s original application and his appeal (Levinc Reply Aff., at 8 20). Petitioiier argues that he is entitled to a carry business handgun licensc OD the sanie basis as otlier retired Sariitation Policc Officers who allegcdly received such licenses under similar factual circumstanccs, based upon a linc of Court of Appeals decisions (see Mcitter o Lujizyette Stor. d f Moviiig Cory. [ H u m e l l ] , 77 NY2d 823 [ 19911; Matter of Cluim of Martin [Roberts], 70 NY2d 679 [ 19871; Mliller of Charles A. Field Delivery Sew., Jnc. [Roberts], 66 NY2d 516 [ 19851). In M u t w of Cliurlcs A . Field Delivery Serv., the Court o r Appcals concluded that the Unemployment Insurance Appeal Board (UT Appeal Board) had failed to adequately explain why its decision, deteniiining that drivers for a delivery service were independent contractors, rather than employccs, was iriconsistenl with two earlier decisioiis bascd upon essentially similar facts, both of which had been confirmed by lhe Appellate Division and the Court of Appeals. The Court of Appeals ruled, .. . absent a n explanation by the agency, an administrative agency decision which, on essentially the same facts as underlaid a prior agency determination, reaches a coiiclusion contrary to the prior dctci-mination is arbitraiy and capricious (66 N Y 2 d at 51 8). The Court stated that it was not rigidly applying the docliiiic of stare decisis and adrninistrativc agencies, likc courts, are free to correct a prior erroneoLis intcyrctation of the law ... [citations omitted] ... by modifying or overruling a past decision (ICE. at 5 18-5 19). Thc Court explaiiicd the result it reached, as follows, ...when an agency deteiiniiies to alter its prior statcd course it must set forth its reasons for doing so. Uriless such an explanation is fh-nished, a reviewing court will be unable to detcimine whether the agency has chaiiged its prior inter-prelation of the law ¬or valid reasons, or has simply overlooked or ignored its I1 [* 12] prior decision [citations omitted] (id.at 520). The Court of Appeals rcmanded tlie matter to the Board for further proccediiigs in accordance with its opinion, presumably to explain why it reached a result dirferent from the two prior decisions. The decisions in Mutter of Lnfuyette Stor.& Moving C u r - (77 NY2d 823, s ~ p r aand Matter o Cluim ofMurtin (70 NY2d 679, supru), both ofwhich ) f lbllow tlie priiiciplcs of Matter of Clznrles A Field Delivery Sew., likewise, involved the review of dctcrniinatioiis of the UI Appeal Board classifying persons as einployees or independent contractors. There are sigiiificant distinctions, however, between Matter of Charles A. F e d Delivery il Serv., tlie decisions following it, and the deteimiwitioii or thc respondent Commissioner and the NYPD License Division as to whether to approve an application for handgun license. Notably, Mutter o f C hrles A . Field Delivery Sew. involved the judicial revicw of a written detcriiiinatioii by ail adiniiiistrative agency, tlie UI Appeal Board, based upon an adjudicatory hearing on the rccord (66 NY2d at 5 1 8). Indeed, the Court of Appeals noted that thc decisions of the Ul Appeal Board, as well as decisions iii adjudicatory procccdings by other administrative agencies subject to the State Administrative Procedure Act, are reported and indexed for public review, in a manner analozoiis to court decisions (id.at 5 19-520 and 11 3). Accordingly, the dctcrminations of such agencies in adjLidicatory proceedings arc akin to tlic legal precedents of judicial decisions. By contrast, thc License Division and thc respondent Commissioner subject each applicant for a handgun license to a rcview and iiivcstigation process to dctennine whether he or she meets the applicable criteria for the liceiise sought. Nevei-thcless, therc is no right to a formal adjudicatory hearing on the rccord, nor are thc decisions or tlic License Division and the Coininissioner reported and indexed. Accordingly, the deterinmalions of the respondciit Cornmissioner to grant or deny a haiidpn license cliffcr sipificantly froin the quasi-judicial procccdings iiivolved in Mutter ojC/znrles A. Field Delwqv Scrv. (66 NY2d 5 16, supra) and similar decisions (see Mutter o Ins. Premium Fin.Assoc. f of New Yorlc StutLi v New York State Dept. o Ins., 88 NY2d 337, 345 [ 19961; Matter of Krziglzt v f Arnelkiu, 68 NY2d 975, 977 [ 19861). 12 [* 13] Pctjtioner has cited no reported decisions applying the principles of M m e r o Churles A. f Field Deliver Sen! to detenninalions by the respondent Commissioner denying applications for handgun licenses. Petitioner relics upon two unreported decisions from this Court involving an application for a carry business handgiin license by another retired Sailitation Police Officer (see Matter of /,uuria v Kd!y, Sup Ct. NY County, May21, 2004, Soto, J, Index No. 101572/04 [Sadok AK, Ex. A]; Mutter o Laurin v Kelly, Aug. 6, 2004). f Tn addition, cven assuming for the sake of argument that Matter o Charks A . Field .Deliwq/ f Serv. applies, petitioner has failcd to establish that he was treated di Kerently from other retired Sanitation Police Officers who applied for carry handgun licenses, under substantially similar factual circunislances. As has been discussed above, the License Division issued a memorandum in September 2002 clarilfliig its guidelincs for issuing handgun licenses to activc rind retircd law enforcement officers (Sadok Aff., Ex. D). The respondent Coinniissioner is free to clarify or even change the policies regarding the issuance of handgun licenses, in accordance with tlic applicable f stattites and regulations (see Matter o Carum v Wurrl, 143 Misc 2d 5 [Sup Ct., NY County 19891, afld 160 AD2d 540 [ 1 Dcpt 19901, lv cfmied 76 NY2d 705 [ 19903). As tlic Court of Appeals stated, The Field decision ... addressed actions of an administrative agcncy acting in a quasijudicial capacity, not those which are quasi-legislative ... Therc is no similar rule applicable to quasi-legislativc actions 01 administrative agency adopting new rules (Mutler oflizs. Premium an Fin.Assoc. of New Yorlc Stute v New York Stnte Dept. o lns., 88 NY2d at 345). The License f Division s guidelines providc that retired Sanitation Police Officers are not eligible for retired law ciiforcement handgun licenses, but must qualify for a handgun license pursuant to the provisions of Penal Law 5 400.00 and the applicable regulations, and are generally granted a restrictcd residence premises license. Petitioncr s application was disposed of in accordance with the License Division guidelines. Nevertheless, petitioner asserts that respondent has not enforced the guidelines in the License Division September 2002 memorandum consistently and has, in fact, granted cairy business 13 [* 14] liandgun licenses to some rctired Sanitation Police Orficcrs after that datc. In Matter o Lauria v f Kelly, the petitioiicr submitted to the Court several documents fi-0111 the files o r two other retired Sanitation Police Officers who applied for handgun licenses. Respondent has rcproduced the documcnts submitted in h d m u o Lauria f KelZy (Sadok Aff., Ex. 13). Thc two Sanitation Police Officers in qucstiori applied lor and received carry business handgun licenses upon their retirement in or about the Fall o r 2000, prior to License Division niemoraridum clarifying its handgun license guidelines (ld.). hi support of [heir applications, they submitted good g11f lettcrs from thcir superiors describing their dulies with the Sanitatioii Police and thcir exemplary service (zd). Their carry business handgun liccnses were renewed in 2003 (id.). view of petitioner s failure to In submit the entire license application and renewal files for each o ¬tlic retired Sanitation Police Officers in question, it is not possible to determine whether their circunistances are, indecd, factually similar to those of pctitioner. Having failed to provide such documentation, it cannot be said that [c]omparison of the facts ,,, niakcs cvident, if not the impossibility of distinguishing this casc [from the cases of other Sanitation Police Officer rctiree pistol license applicants] at least the existence of sufficient fdctual similarity bctwccii those cases and lhis to require explanation [by thc License Division] of why it f rcached a di ¬erent result in this case (Mutter o Chzr1e.s A. Field Delivery Serv., 66 NY2d at 521 [parcntheticals supplicd]). Moreover, the fact that respoiident has recently renewed carry business handgmi licenses issued to two retired Sanitation Police Officers, by itself, is insufficient to establish that resporident is applying the guidelines rcgarding handgun liceiiscs for such retired peace offccrs inconsistently (see Mutter o KapZrn v Bratton, 249 AD2d 199, supra [Court not f convinced by pctitioner s siibiiiissioii of cxamples of other allegedly similarly situated physicians who reccivcd pistol licenscs]). Significantly, there is no evideiicc as to how rcspondent acted with respect to handgiiii liccnse applications submitted by the Sailitation Police Officers who retjrcd after September 2002. L summary, the respondent Commissioiier has provided a rational basis for denying n 14 [* 15] petitioner s application lor tlic privilege of a carry business handgun license, based upon his failure to show proper causc , in accordance with the requirements of the applicable statutory provisions and regulations. Respondent dealt with petitioner s application based upon the License Division guideliiics for granting handgun licenses to rctircd Sanitation Police Officers. As has been stated above, thc burden of demolistrating propcr cause is on the applicant, in this case petitioner (see Matter oj Kuplun v Bratton, 249 AD2d at 201). On the record bcfore this Court, petitioner has not shown any basis to aiiiiul respondelit s deteiiiiination denying his applicatioii for a cany business 11andglrll I iccnsc. Accordingly, it is ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed; and it is further ORDERED that, within thirty days of entry, petitioncr shall serve upon all parties a copy of this dccision, order and judgment, together with notice of cntry. ENTER: I t Doris Ling-Cochan. JSC Check One: [XI FINAL DIS OSlTlON [ ] NON-FINAL t ] DO NOT POST Check if Approprlate: 15 DISPOSITION

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