Mascarella v LiMandri

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Mascarella v LiMandri 2012 NY Slip Op 32207(U) July 20, 2012 Supreme Court, New York County Docket Number: 101324/2011 Judge: Lucy Billings 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. SCANNED ON 812212012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK * - NEW YORK COUNTY PART& l Justice I / MOTION DATE -vMOTION SEQ. NO. I MOTION CAL. NO. The following papers, numbered 1 to 2 were read on this- S@ to/fpf L/ptruc wfiw PAPERS NUMBERED Notlce of Motion/ Order to Show Cause - Affidavits - Exhibits Answerlng Affidavits ... I - Exhibits z Replying Affidavits Cross-Motion:' 0 Yes No UNFILEQ JUDGMENT \\ 7kts Judgmenthas not been entered by the County Clerk and notice of entry cannot be served based hereon. To oBtdn entry, cwnsel or authorized representative must appbarh Btthe-CleMs oesk(R0om 1418). r- J RECEIVED AUG 2 1 2012 MOTION SUPPORT OFFICE NYS SUPREME COURT - CIVIL Dated: L 7 7 1 m - s J. S. C. :2-E ' .,NON-FINAL DISPOSITION 0 Check one: FINAL DISPOSITION 0 L r 0 DO NOT POST u REFERENCE 0 SUBMIT ORDER/ JUDG. 0 SETTLE ORDER/ JUDG. Check if appropriate: [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 Index No. 101324/2011 JAMES MASCARELLA, DECISION AND ORDER Petitioner \ - against - APPEARANCES : For Petitioner; Robert J. La Reddola Esq. 600 Old Country Road, Garden City, NY 11530 For ReBpondent Amy Weinblatt, Assistant Corporation Counsel 100 Church Street, New York, NY 10007 LUCY BILLINGS, J . S . C . : I. BACKGROUND Respondent petitioned in the New York City Office of Administrative Triala and Hearings (OATH) to revoke petitioner's Hoisting Machine Operator C l a s s B Unlimited License on the grounds of poor moral character, N.Y.C. Admin. Code § 28- 401.19(13) , and failure to comply with a New York City Administrative Code provision or respondent's lawful rule, order, or other requirement. N.Y.C. Admin. Code § 28-401.19(7). The underlying premise f o r both grounds was petitioner's conviction of extortion under the federal Hobbs Act, 18 U . S . C . upon h i s guilty plea September 27, 1 5 1951(a), 2004. After t h e OATH hearing [* 3] November 8, 2010, the Administrative Law Judge ( A L J ) , recomrnenLdd a one year suspension of pFtitiloner's license. In a final determination dated January 5, 2011, respondent revoked petitioner's license. 11. APPLICABLE STANDARDS An AILJ'S determination after a hearing is entitled to significant weight. 80 Lafavette Assoc, v. Gibson, 59 A.D.3d 231, 233 (1st Dep't 2 0 0 9 ) ; Albany l4anor Inc. v. New York State Liquor Auth., 57 A.D.3d 142, 144 (1st Dep't 2 0 0 8 ) ; Grossbers v. Christian, 245 A.D.2d 118 (1Bt Dep't 1997); Promesa, Inc. v. New York State Dept. of Health, 204 A.D.2d 179 ( 1 s t Dep't 1994). Respondent may reverse the ALJ's determination only if substantial evidence supports respondent's contrary conclusion. 80 Lafayette Assoc. v. Gibeon, 59 A.D.3d at 2 3 3 ; Pbncini v. New York City Dept, o f Envtl. Protection, 26 A . D . 3 d 178, 179 (1st Dep't 2006) ; Promel a , Inc. v.Jew York State D e p t . of Hea lth, 204 A.D.2d 179. The court may vacate a final determination following an administrative hearing if that "determination was made in violation of lawful procedure, wa8 affected by an error of law or was arbitrary and capricious or an abuse of discretion." C.P.L.R. 5 7803(3). This court may not rule on whether a determination following a hearing was unsupported by substantial evidence, b u t muBt transfer that question to t h e Appellate Division. C.P.L.R. § § 7803(4), 7 8 0 4 ( g ) . Before transferring the proceeding, however, this court must rule out the other grounds 2 a- [* 4] for vacating or remanding the administrative decision. §§ 7803(3) 2003). I 7804(g) ; E a r l C.P.L.R. v, Turner, 303 A.D.2d 282 (1st Dep t I The record here sets forth grounds to vacate respondent s determination independent of the substantial evidence question. 111. VIOLATION OF LAWFUL PRQCEDURE Respondent may revoke or suspend petitioner s license based on his lack of good moral character due to a prior conviction for a crime where it is directly related to the license and work for which the licenae is required or where continuing the license poses an unreasonable risk to the safety of persons or property. N.Y. Correct. Law 5 752. New York Correction Law § 753(1) lists the factors a public agency must consider when determining whether to continue a license in light of the licensee s past criminal conviction. Buffy v. LiMandri, 93 A.D.3d 411 (1st Dep t 2012); Inqlese v. LiMandri, 89 A.D.3d 604, 605 (1st Dep t 2011). Although the A L J fully considered those factors in reaching his determination, respondent s revocation determination merely recites that those factors support his determination and specifically addresses only a few selected factors. In particular, respondent failed to address the length of time since petitioner s offense in 2001. N.Y. Correct. Law 5 753(1) (d). During that time, as N e w York City Department of Buildings (DOB) Director of Licensing Aisha Norflett testified, DOB, in 2008, renewed petitioner s license after petitioner had disclosed his prior conviction. Respondent also failed to address the uncontroverted evidence of petitioner s exemplary conduct 3 [* 5] relevant to the licensed work. N.Y. Correct. Law § 753(1) (9). At the OATH hearing, petitioner presented two witnesses, who testified t h a t petitioner was well known in the work force as a safe hoist operator, t h a t he was a trustworthy employee, and that his criminal conviction did not affect h i s ability to perform the work. IV. RESPOWE@T $ DISQUALIFICAT~O~ Petitioner complains that respondent initiated the proceedings to revoke hia license and then became the adjudicator of those proceedings. Respondent minimizes hiB involvement in the revocation proceedings as indirect, emphasizing he was not a witness. He maintains that nothing in the record demonatrates how his fairness or impartiality was undermined. T h e record nonetheless shows that respondent initiated the proceedings to revoke petitioner s license at OATH. While respondent himself did not prosecute the charges, a DOB attorney did so on respondent s behalf. As the advocate for revocation of petitioner s license, respondent is disqualified from adjudicating that claim. Beer Garden v. N e w York State Lis. Auth., 79 N.Y.2d 266, 2 7 8 (1992); Roae~blu m-Wertheirn v, New York State Div. of H u m a n Riqhte , 213 A.D.2d 231, 232 (let Dep t 1995); State Div , of Human Riqht6 v . Dorik s Au Natural R e s t . , A.D.2d 163, 164 (1st Dep t 1994). 204 Serving as both prosecutor and adjudicator presenta at minimum an appearance of unfairness or impartiality that requires recusal. General Moto rs Corp.-Delco pro&, Div. v. Rosa, 82 N.Y.2d 183, 188 (1993); Beer Garden 4 V. [* 6] , New York State iq, I Auth., 79 N.Y.2d at 279; State Div, of Human Riqktts v, DQrik s Au Naturai Rest., 204 A.D.2d 163. Respondent has not shown that his disqualification will prevent the hearing and determination of the revocation proceeding against petitioner. General Motor8 Corp.-Delco P r Q d s . Div. v. Rosa, 8 2 N.Y.2d at 188. See Baker Y. Pouqhkeepsie City School Dist., 18 N.Y.3d 7 1 4 , 718 (2012). V. CONCLUSION Since respondent s dual participation disqualified him from making the final determination regarding petitioner s license revocation, the court grants the petition to the extent of annulling respondent s determination and remanding the proceeding to DOB for a new final determination by an impartial decisionmaker, based on the weight of the ALJ s determination. Corninq Glase Works v. Ovean ik, 84 N.Y.2d 619, 626 (1994); General. Motors Corp.-Delco Prods. D j v , v. Rosa, 82 N.Y.2d at 190; Deluxe Ho of Pa. v. state Q f New York 0 iv. of 205 A.D.2d 394 (1st Dep t 1994). ¬Juman RiqhtR, This decision constitutes the court s order and judgment granting the petition to that extent, otherwise denying the petition, and dismissing this proceeding. C.P.L.R. 5 5 7803(3), 7806. DATED: July 20, 2012 LUCY BILLINGS, J.S.C. UNFILED JUDGMENT Thls judgment has not been entered by the County Clerk and notice of entry cannot be served based hereon. To obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk s Desk (Room 1416). 5

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