Matter of River Produce Corp. v Business Integrity Commn. of the City of N.Y.

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Matter of River Produce Corp. v Business Integrity Commn. of the City of N.Y. 2012 NY Slip Op 31323(U) May 14, 2012 Supreme Court, New York County Docket Number: 113436/2011 Judge: Alexander W. Hunter Jr 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 ON 511812012 i SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: AtElXANDER W. HflNTFR R PART Justice - Index Number - 113436/2011 RIVER PRODUCE CORP. vs. BUSINESS INTEGRITY COMMISSION SEQUENCE NUMBER : 001 ARTICLE 78 Answering Attldrvb MOTION DATE MOTION 8CQ. NO. , were b a d on thlr moblon tonor The foilowlng prpen, numbered 1 t o Notlue of MoUonlOrder to Show Crurs INDEX NO. -AMdavlt8 - Exhlbb )No(@). - Exhibits )NOW. 17 - 25 I NO(@). ROplylnQAffldrvlb Upon the fomgolng paprp, I I ordered that thlr rnotlon Is ts UI i 3 UNFILED JUDGMENT This judgment has not been entered by the County Clerk and notice of entry cannot t servd based hereon. To x obtain enby, counsel o authorized r r e must -in atthe Judgment Clerk's Desk(R0om * 1418). 9 z i J.S.C. / ALEXANDER W. HUNTER JR ..................................................................... d CASE D I S P O S E Y DENIED GRANTED .2. CHECK AS APPROPRIATE: .............. MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ SETTLE ORDER I CHECK ONE . 0DO NOT POST NON-FINAL DISPOSITION GRANTED IN PART 0OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] Petitioner, Decision and Judgment For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, Respondents. The application by petitioner for an order pursuant to C.P.L.R. Article 78, annulling and vacating respondent the Business Integrity Commission of the City of New York s ( BIC ) decision issued on August, 2,201 1 to deny its application for registration to operate as a wholesale business in the New York City Terminal Produce Cooperative Market at Hunts Point ( Hunts Point ), is denied and the proceeding is dismissed, without costs and disbursements to either party. Petitioner River Produce Corp. ( River Produce ) was started in 2005 and is in the business of distributing salads to retailers and wholesalers. Vincent J. Bondi ( Bondi ) is the sole principal/owner and president of River Produce. On or about October 13,2009, petitioner filed with the BIC a Wholesale Business Registration Application to operate its business at Hunts Point. The application was signed by Bondi. As part of the application, Bondi summarized his criminal history. From 1971 to 1983, Bondi was convicted of various crimes, including petit larceny, criminal possession of a stolen credit card, unauthorized use of a motor vehicle, promoting gambling, and possession of gambling records. In 1982, Bondi pled guilty to the misdemeanors of promoting gambling and possession of gambling records. In 1983, he pled guilty to the misdemeanors of promoting gambling and possession of gambling records. On August 26,2002, Bondi pled guilty in the U.S. District Court for the Southern District of New York to conspiracy Respondent BIC is charged with the registration and licensing of wholesale businesses located or operating within a public wholesale market. [* 3] to make an extortionate loan of credit. He was sentenced to twenty four months in prison, three years of supervised release, and ordered to pay a fine in the amount of $25,000.00. On August 25,2010, Bondi appeared at a deposition in connection with petitioner s application before the BIC. On February 16,201 1, the BIC staff recommended the denial of petitioner s application. By letter dated March 14,201 1, petitioner s counsel objected to the BIC staffs recommendation. On August 2,20 11, the BIC issued its final decision and found that River Produce lacks the requisite good character, honesty, and integrity to register. Petitioner asserts that the BIC s decision was affected by an error law, is arbitrary and capricious, or was an abuse of discretion. Petitioner argues that some of the BIC s findings are irrational, speculative, and wholly unsupported by any evidence in the record. Petitioner takes issue with the BIC s finding that: Vincent Bondi is an associate of the Genovese crime family. Bondi has repeatedly denied that he is or has ever been an associate of the Genovese or any other organized crime family. River Produce also maintains that respondepts have failed to present any evidence supporting Bondi s alleged association with members of any organized crime family since his release from prison. Petitioner claims that the BIC s finding that: Applicant has associated with organized crime figures and a convicted racketeer is irrational, arbitrary, and capricious. Petitioner argues that this assertion is based upon its employment of John Donnadio, a convicted racketeer and associate of the Luchese crime family. Petitioner contends that in light of the evidence of his rehabilitation and good conduct since 2002, this association between Vincent Bondi and John Donnadio should not be given weight. Moreover, the probation officers responsible for Bondi s and John Donnadio s probation approved of the two men working together in business ventures. Petitioner also argues that respondent s decision is violative of Correction Law Article 23-A because the BIC failed to properly consider the factors enumerated in Correction Law 0 753. River Produce asserts that Bondi s criminal history involves largely minor convictions before his federal conviction in 2002, and he has presented evidence of his rehabilitation and good conduct since that time. Furthermore, petitioner contends that Bondi s federal conviction is unrelated to the activities, duties, and skills that are necessary for the sale of produce in a public market. Respondents assert that the BIC denied the application based upon Bondi s extensive criminal history involving crimes going directly against petitioner s good character, integrity, and honesty. Respondent BIC s determination was based on four independently sufficient grounds: 1) Bondi s numerous criminal convictions; 2) Bondi s association with the Genovese crime family; 3) Bondi s racketeering conviction; and 4) Bondi s association wt organized crime ih figures and a convicted racketeer. Respondents argue that the BIC considered testimony and . documentation provided by Bondi, federal criminal proceedings, information from law enforcement authorities and the eight enumerated factors in Correction Law $ 753 when making its final determination. [* 4] J Local Law 28 is codified as amended at Administrative Code of the City of New York 5 22-25 1 et seg. Local Law 28 requires food wholesalers and businesses located in public wholesale markets to register with the BIC. Administrative Code 5 22-259 provides that the BIC may refuse to register an applicant who lacks good character, honesty, and integrity. The BIC is also expressly authorized to consider the commission of crimes by an applicant or any of its principals which would provide a basis to deny a license under Correction Law Article 23-A, racketeering offenses, and the association with any member or associate of an organized crime group. See, Administrative Code 9 22-259(b). Correction Law 8 752 prohibits public agencies or private employers from denying a license or employment to an applicant based solely on his or her status as an ex-offender. However, there are two exceptions to this general rule either: 1) where there is a direct relationship between the prior criminal offense and the license or employment being sought; or 2) where the granting of the license or employment would pose an unreasonable risk to property, safety of specific individuals or the general public. Correction Law 58 752(1) and ( ) In 2. making its determination, an employer must consider the following eight factors: 1) the public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses; 2) the specific duties and responsibilities necessarily related to the license or employment sought or held by the person; 3) the bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities; 4) the time which has elapsed since the occurrence of the criminal offense gr offenses; 5 ) the age of the person at the time of occurrence of the criminal offense or offenses; 6 ) the seriousness of the offense or offenses; 7) any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and 8) the legitimate ,interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public. Correction Law § 753. It is well settled that a determination is arbitrary and capricious when it is made without , sound basis in reason and is generally taken without regard to the facts. % Matter of Pel1 v. J3d. of Educ. of Union Free $cbool h s t . No, 1, Qf Towns of Scarsdsle & Mamaroneck, YestChester Countv, 34 N.Y.2d 222,231 (1974). &Even though the court might have decided differently were it in the agency s position, the court may not upset the agency s determination in the absence of a finding, not supported by this record, that the determination had no rational Mrstter of iMide a h Ci C nciliati Bd,,112 basis. f A.D.2d 72,76 (1st Dept. 1985). Therefore, this court s role is limited to whether or not respondents final determination w& made without a rational basis. In the case at bar, this court finds that there was a rational basis for respondents to deny petitioner s application for registration to operate as a wholesale business at Hunts Point. The BIC found that Vincent Bondi s lengthy criminal history provided substantial evidence that he lacked good character, honesty, and integrity. The crimes for which Bondi was convicted, promoting gambling, possession of gambling records, and conspiracy to make extortionate 3 [* 5] extensions of credit, are directly related to the purpose for registering with the BIC, namely the elimination of organized crime and other forms of corruption at public wholesale markets. Not only did the BIC rationally conclude that Bondi was an associate of the Genovese crime family, but it also found that he associated with organized crime figures and a convicted racketeer evidenced by dealings with Joe Guiliano, an associate of the Genovese crime fwily, and John Donnadio, an associate of the Luchese crime family. Respondents also considered all eight factors and balanced the positive factors against the te negative factors when making its determination. See e.g., mt r Acogta v. N ew York Citv DeDt, of Ed 16 N.Y.3d 309 (2011); Matter of Grrocha v, Board of Educ. ofCitv of N.Y., uc., 93 N,Y.2d 361 (1999); Matter of Eloeacorsa v, Van Lindt, 71 N.Y.2d 605 (1988). Ultimately, the BIC found that petitioner s evidence of rehabilitation and good conduct since his release from prison was insufficient in light of the seriousness of his criminal offenses a it relates to the s registration. Annulling respondents determination would require a reweighing of the factors and that is beyond the limits of judicial review. Accordingly, it is hereby, ADJUDGED that the petition is denied and the proceeding is dismissed, without costs and disbursements to either party. Dated: Mav 14.20 12 ENTER: UNFlliEO JUDGMENT 7hls judgment has not been entered bv the Countv Clerk m not& of entry cannot be served based her&. To d obtain entry, counsel or authorized representative must appm in person ab Um Judgment Clerk s Desk (Rocwrr 1416). 4

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