Matter of Scalera v New York City Dept. of Bldgs.
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Matter of Scalera v New York City Dept. of Bldgs. 2012 NY Slip Op 31939(U) July 5, 2012 Supreme Court, New York County Docket Number: 103293/11 Judge: Paul Wooten 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] / SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY HON. PAUL WOOTEN PART Justice ? the Matter of the Appllcatlon of Petitloner, 103293llI INDEX NO. For a Judgement Pursuant to the Provisions of Artlcle 78 of the New York Civil Practice Law and Rules, -against001 MOTION SEQ. NO. THE NEW YORK CITY DEPARTMENT OF BUILDINGS, RECEIVED Respondent. The following papers numbered I to 4 were read on this motlon by petltioner for an dkr%k&&ement Notlce of Motlonl Order to Show Cause Answering Amdavits - Affldavlts - Exhlblts ... F - Exhlblts (Memo) I JUL 1 9 2Q12 Replying Affidavits (Reply Memo) Cross-Motlon: UYes e E? D 4 1 No NEW YORK This is an Article 78 proceeding brought by F r a m T # r C w 6 # r f h a r c h 17, 201 1, in which petitioner seeks an order pverslng, annulling and setting aside the determination by the New York City Department of Buildings (respondent), dated December 8, 2010, to deny the petitioner a Master Plumber's License pursuant to the New York City Administrative Code (Administrative Code) 26-146(a).' In denying petitioner's application, respondent concluded that the petitioner did not sufficiently demonstrate that he had obtained the requisite seven years of prior experience in the design and installation of plumbing systems under the direct and continuous supervision of a licenced Master Plumber (see Verified Petition, ' Administrative Code 5 26-146 states in relevant part: "In addltlon to meeting the general qualifications prescrlbed In sectlon 26-1 33 of thls subchapter: a. all applicants for a master plumber certlflcate shall submlt satisfactory proof establishing that the applicant: I. has had at least seven years' prlor experlence In the design and installatlon of plumblng systems In the Unlted States; or 2. has received a bachelor's degree In englneerlng or approprlate engineerlng technology from a college or unlversity registered by the state department of education and ha8 had at least three years prior experience in the design and lnstallatlon of plumbing systems in the United States." Page 1 of 6 [* 2] exhibit C). Pursuant to their authority to investigate candidates for a license (see 55 RCNY 1102[h]), and in reviewing petitioner s application and supporting documentation and his previous work experience, respondent discounted more than six years of the petitioner s alleged qualifying work experience. Respondent also expressed concern that the petitioner did not provide various material which was requested. In particular, respondent noted that petitioner failed to provide Union wage scale information necessary to interpret the petitioner s Social Security Earnings Statement (SSE), nor did he provide any contracts with any City or State authorities with whom he may have worked. In his license application petitioner claimed to have performed plumbing work under the supervision of licensed master plumber Frank A. Marano (Marazzo) at F 8 V Mechanical Plumbing & Heating Corp. (F & V) from November 10, 1991 to June 1995. However, respondent only credited petitioner with eight months and two weeks of experience at F & V due to the minimal number of permits obtained by Marauo between 1991 and 1994, even though petitioner stated that the work Marauo performed for New York City and New York \ State agencies was complex and time consuming despite not having permits. Respondent also reviewed petitioner s SSE during this period and concluded that his low wages for the trade indicated that he may not have been employed on a full time basis during that time (Verified Petition, exhibit C). Moreover, respondent noted that petitioner failed to provide it with any contracts with any City or State authorities with whom he may have worked. Additionally, the letter submitted by William Kelly, dated February 28, 2008, only stated that petitioner was employed by F 8 V from I990 to 1994.2 Respondent also noted that petitioner submitted a letter stating that Marauo had retired and could not contacted. F & V has since changed Its name to Railworks Transit, Inc. Page 2 of 6 [* 3] Petitioner also claimed to have worked at Domestic Plumbing & Heating (Domestic) during the period of February 20, 1998 to 2000 under the supervision of master plumber Sebastian Rendino (Rendino). However, respondent declined to credit the petitioner with any claimed work experience with Domestic, Respondent found that petitioner failed to demonstrate sufficient work in design and installation of plumbing systems at Domestic because Rendino only obtained 5 permits in 1999 and 2 in 1998, and also because a review of petitioner s SSE showed petitioner earned no wages under Domestic, which is contrary to petitioner s assertion that he was under their employ. Moreover, petitioner found that the letter submitted by Rendino, dated February 28, 2008, did not explain the absence of wages or sufficiently verify the three years of claimed work experience. Petitioner now brings this Article 78 proceeding seeking to annul respondent s determination and to compel respondent to reconsider his application for a master plumber s license. In support of his petition, petitioner asserts that respondent s failure to issue his license was arbitrary and capriciaus. Petltioner argues that by mlslnterpreting the Administrative Code and creating qualifications regarding the amount of permits obtained and h proof of wages, which are not mentioned in the Administrative Code, respondent is abusing its discretion afforded to it by statute. In opposition the respondent asserts that petitioner s license application was denied because he failed to demonstrate that he completed seven years of experience in plumbing work, and in reaching this determination respondent did not read additional requirements into the Administrative Code. As such, respondent maintains that its determination was rational, reasonable, and supported by the administrative record and should be upheld by the Court. STANDARD The standard of review in this Article 78 proceeding is whether the respondent s Page3of 6 [* 4] determination "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (CPLR 7803[3]; see also Matter of Scherbyn v Wayne-Finger Lakes Bd, of Coop. Educ. Servs., 77 NY2d 753, 758 [1991]). Furthermore, the Court of Appeals has held "that the interpretation given to a regulation by the agency which promulgated it and is responsible for its administration is entitled to deference if that interpretation is not irrational or unreasonable" (Matter of Gaines v New York State Div. of Hous. & Community Renewal, 90 NY2d 545, 548-549[I 9971; see also Matter of Pel/ v Board of Educ. of Union Free School Dist. No, I of Towns of Scarsdale and Marnaroneck, Westchester 9741; Matter of West Vi/. Assoc. v New York State Dlv. of Hous. &I County, 34 NY2d 222, 231 [I Community Renewal, 277 AD2d 111,112 [ 1st Dept 20001 [a rational and reasonable determination of an agency within its area of expertise is entitled to deference by the courts]). As such, a court "may not overturn an agency's decision merely because it would have reached a contrary conclusion'' (Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d 269, 278 [1972]; see also Matter of Verbalis v New York State Div. of Hous. & Community Renewal, 1 AD3d 101 [ l s t Dept 20031). b Moreover, an "[algency determination of a license application requires a certain amount of discretionary judgment-making which courts will not disturb absent a finding that such judgments were arbitrary or capricious'' (Matter of Montanez v City of N. Y. Depf. Of Bldgs. 8 I Misc3d 405, 407 [Sup Ct NY County 20051; see Matter of Pel/, 34 NY2d at 231). DISCUSSION All parties agree that petitioner has met the general qualifications for a license pursuant to Administrative Code 5 26-1 33 and that he passed the written test authorized under Administrative Code 5 26-1 34. The dispute here is only whether respondent's determination that petitioner failed to adequately substantiate that he had at least seven years' prior experience in the design and installation of plumbing systems in the United States as required Page4of 6 [* 5] by Administrative Code 5 26-146(a), was proper. The Court has considered the parties submissions and for the reasons set forth below, the petition is granted and this matter is remanded back to the respondent for a determination consistent with this decision. The Court concludes that while respondent s determination that petitioner lacked the necessary work experience for a master plumber s license was a discretionary judgment, it was arrived at in an arbitrary and unreasonable manner, such that it constitutes an abuse of discretion (see Matter of Arroche v Board of Educ. of City of N. Y., 93 NY2d 361, 363 [I 9991). Specifically, respondent s refusal to credit petitioner for most of the time that he worked for F&V during 1991 to 1994, and for any of the time he worked at Domestic during 1998 to 2000, based upon the minimal number of permits issued to his supervising master plumbers was arbitrary and capricious. The Court recognizes that it is the responsibility of licensed master plumbers and employers to file appropriate work permits with the respondent for plumbing work. Thus, while the failure to file the appropriate work permits is a violation of the Administrative Code attributable to the business, it is irrational that petitioner should not get work credited to him b when he worked on jobs that may not require the Issuance of a permit. Moreover, it also seems irrational to punish petitioner, a license candidate, based on the failure of the employer/master plumber to meet their obligation to file for a permit. In particular, in this case, Marazzo from F & V is retired and no longer operating under the respondent s purview, and therefore has little reason or obligation to respond to its inquiries about the petitioner. Respondent s decision to not credit petitioner with work experience on the basis of the minimal number of permits obtained by his supervising master plumbers amounts to a new licensing requirement not authorized by the statute and cannot stand (see Matter of Kreitzer Bldgs. , 24 AD3d 374 [ I st Dept 20051;Montanez, supra). Page5of 6 v New York City Dept. Of [* 6] CONCLUSION For these reasons and upon the foregoing papers, it is, ORDERED that the petition is hereby granted and the determination of the New York City Department of Buildings is annulled; and it is further, ORDERED that this matter is remanded for reconsideration by respondent in a manner consistent with this decision; and it is further, ORDERED that petitioner s h parties. This constitutes the PAUL WOOTEN, J.S.C. 1. Check one: ................................................................ CASE DISPOSED 0 2. Check If appropriate:............................ MOTION IS: GRANTED DENIED \ 3. Check If appropriate:................................................ OTHER SETTLEORDER NON-FINAL DISPOSITION GRANTED IN PART 0 0SUBMIT ORDER DO NOT POST 0 FIDUCIARY APPOINTMENT 0 REFERENCE FILED NEW Y O H K COUNTY CLERK'S OFFICE Page 6 of 6
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