Matter of Davies v New York City Dept. of Bldgs.
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Matter of Davies v New York City Dept. of Bldgs. 2012 NY Slip Op 32630(U) October 5, 2012 Supreme Court, New York County Docket Number: 114100/11 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. ANNEDON I011712012 [* 1] [* 2] [* I 3] Filing as well a5 evidence of his rehabilitation. Petitioner respon 201 1, and provided the required additional inf August 19, 201 1, the DOB denied p the requirements of the New York City Admin Specifically, in reaching its determination the [* 4] 269, 270 [* 5] [* 6] [* 7] [* 8] [* 9] INDEX NO. For a Judgement Pur Article 78 of the New ION SEQ. NO. -against- THE NEW YORK CITY DEPARTMENT OF BUILDINGS, Respondent. tioner for an order and judge S NUMBERED Cross-Motion: I I Yes No r), seeks a judgment annulling the is Article 78 proceeding, k City Department of Buildings Stationary Engineer license and to reconsider pet ion. Petitioner seeks a declaration ible for his renewal, and a de ation that respondents the DOB, failed to perform a duty enjoined upon them by the New York State Correction Law $5 752 and 753. BACKGROUND Petitioner has been a licensed sta nary engineer since 1996 On June I, 1998, petitioner pled guilty to a violation of the New York Penal Code 5175.30, Offering a False instrument for Filing, a class "A" Misdemeanor, wherein he falsely certified that he had successfully completed a refresher course in order to renew his Commercial Pesticide Applicator license (see Verified Petition 7 3) This resulted in a sentence of a Conditional Page 1 of 8 [* 10] any triable issues exist, not to Centiiry-Fox Film Corp , 3 NY2 most favorable to t h e nonmovi sonable inferences that ca 46 NY2d 223, 231 [1978]). Premises Liability nt person in maintaining its Generally, a landowner mu asonably safe condi injury, the potential seriousness of ez, 100 NY2d 139, 144 [2003]). y must be aware of the alleged it, actual knowledge of the e or dangerous condition, either t condition or constructive notice of it through t h e defect s visibility for a sufficient amount of time prior to the accident to enable a defendant to discove d remedy it (see Gordon v American Miisciiin of Nafur-a1History, 67 NY2d 836, 837 [I 9861). ble duty to maintain the sidewalk abutting its premises (Spector v Cushman & Wakefi Inc., 87 AD3d 422, 423 [ 1st Dept 201 I]; see also Vucetovic v Epsom Downs, 117c , 10 NY3d 517, 519-521 [2008]; Cook v Consohdated Edisoti Co. of NY, Inc , 51 AD3d 447, 448 [ l s t Dept 20081). .Contract Interpretatioy! A lease is a contract and, where provisions of a lease are clear and unambiguous, they should be given their plain and ordinary meaning (see United States Fid. & Guar, Co v Anm/iiz/;ila,67 NY2d 229, 232 [I 9861) While ambiguities are construed against t h e drafter, the cow should not disregard the plain meaning 20 create an ambiguity, since this improperly PageSof 9 [* 11] Discharge and a $50 ducation (DOE) In 2003, petiti Provisional Custodial for Public School 131, and ties consisted o things, custodial upkee or High Pressure Ope opposition that in 2003, the New York State Attorney General and the Special Commissioner of Investigation for the New York City School System commenced a joint investigation which revealed that school custodians repeatedly rigged bids and received kickbacks for contracts to clean windows from 1996 to 2001 (s sition, itioner was one of more than seventeen custodians charged in connection with filing false expense orts in connection with hiring outsid out following the proper pr citing three independent bids (id.). , he pled guilty to the Cla demeanor of Offering a False Instrument for Filing in the Third Degree, wherein petitioner itted to filing a false expense report and suppo his failure to comply with ner received a one mentation in an effort to conceal idding procedu onditional Discharge, sign from his position and was permanently b Verified Petition 7 4) This was petitioner s second conviction while serving as a licensed stationary engineer As part of the plea agreements, he was provided with a Certificate of Relief from Civil Disabilities for both crimes (see Verified Petition, exhibit D). From May 2004 through May 2010, petitioner claims he repeatedly and successfully renewed his engineer s license, however his April 19, 201 1 renewal application was denied (see Verified Petition 7 5). As part of its investigation of petitioner s license renewal application the DOB informed petitioner that it needed additional information, specifically a copy of documentation surrounding his 1998 and 2003 guilty pleas to offering False Instruments for Page 2 of 8 [* 12] 201 I, provided the required additional information and documentation to the DOE. On and August 19, 201 1, th tion, the requirements of the New York City Administrative Code (Admin Code) 5 28-401 12 Specifically, in r Admin Code 3 28-401.19(12) and (13) which state: "(12) Conviction of a cri a1 offense where the underlying act arises out of the individuql's professional dealing's with the city or government entity, [and] (13) Poor moral character that adversely reflects on his or her fitness to conduct work regulated by this co er, exhibit I). On No request DISCUSSION The standard of review in this A ing is whether the re determination "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of dis n" (CPLR 7803[3]; see also Matter ofScherbyn v Wayne-Finger Lakcs Bo'. o Coop Educ Sews., 77 NY2d 753, 758 [1991]). Furthermore, the f "that the inter io onsible for its adminis interpretation is not irrational or unreasonable" (Matter of Gaines v New York Sfate D v . o f Horis. & Coinrnunity Renewal, 90 NY2d 545, 548-549 [ 19971; see also Matter of Pel/ v Board o f E'diic of Utiiori Free School Dist No I o Towns of Scarsdale and Mainaroneck, Wesfchester f Coimfy, 34 NY2d 222, 231 [1974]; Maffer of West Vi/.Assoc. v New York State Div of Hous & Corninunify Renewal, 277 AD2d 1 11,112 [ 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" (Maffer o Sullivan Comfy Harness Racing Assn. v Glasser, 30 NY2d f Page3of 8 [* 13] s a certain amount Misc3d 405, 407 [Sup Ct NY County 20051; see Matter of Pel/, 34 NY2d at 231). Article 23-A encompasses sections 750-755 of the Correction Law Section 752 prohibits the unfair discrimination against persons previously convicted of criminal offenses who are ap (I) there is a direct relationship between one or more of the license or employment previous criminal offense sought or held by the ind se or th or ve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. uance or contin Section 753(1) of the Correction Law sets forth factors to be considered when denying or approving a license or job application for any individual with a criminal conviction. The factors are: (a) The public policy of this state, as expressed in this act, to encourage the licensure .. of persons previously convicted of one or more criminal offenses. (b) The specific duties and responsibilities necessarily related to the license ... sought or held by the person. (c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or Page 4 of 8 [* 14] or more such d Section 753(2) of the Correction Law also states the In making a determination pursu f Relief is issued to eligible offend so that they are not automatically barred from employment based on the conviction. Section es the following, in A certificate of r crime or of the imposed by law by offense specified t S rection Law explains that the Certificate of Relief does not prevent any "judicial, administrative, licensing or other body, board or authority from relying upon the conviction specified therein as the basis for the exercise of its discretionary power to suspend, revoke, refuse to issue or refuse to renew any license, permit or other authority or priviIeg e. " The DOE, among other things, approves or denies initial and renewal license applications for Stationary Engineers According to Admin Code 5 28-401.12, the DOE "may, following notice and an opportunity to be heard, refuse to renew a license or certificate of Page 5 of 8 [* 15] nd or revoke a k e n s reflects on his or he code (Admin Code § th which denied petitioner s application for renewal of Engineer license was rational and should be upheld. After receiving and reviewin ritten explanation regarding his two convictions, dated June 1 201 1, along with rting documentation DOE3 decided th the other items in petitioner s application, despite the cter and did not present viction. One of the factors includes th earing, if any, the ave on the applicant s fitness to perform the job duties. After reviewing its own regulations set forth in Admin Code 401 19(12) and (13), and ability to provide t 3 28- those of the Corrections Law, the DOB explained to petitioner uI and accurate records o iler activity are in question. The DOE3 noted that petitioner was already a responsible adult, thirty-four years old and thirty-nine years old, when his convictions occurred and he should not have engaged in such conduct As such, the DOB s explanation and decision for its denial was rational and reasonable and will not be overturned. Page6of 8 [* 16] at the DOB s d was deprived of his ural due process as re erified Petition 77 Admin Code § 28-40 OB ion law 5 7 5 3 ( 2 ) (see Verified Petition). presuniption such certificate Petitioner also notes that he disclosed his prior Code which went into effect July renewal, pursuant to an ame rt finds that petitione ity to be heard in that he une 1, 201 1, and by letter prior to th submitted additional documentation, includin mendation from previous employers. The record indicates that the D is material yet still denied petitioner s application Further, the DOE delineated e le 23 of the Correction Law in its denial. The DOB conclu that even thou ver ten years ago, peti ion and his conduct also clea from the position of trust and authority [he was] given by the city (Verified Answer, Exhibit I at p 3). [Tlhe presumption of rehabilitation does not preclude [respondents] from considering any of the other seven factors, unrelated to rehabilitation, including prior convictions in the context of the license or employment being sought (Matter of Arrocha v Board of Educ of City of N. Y,, 93 NY2d 361, 366 [1999]). Although Correction Law 5 752 prohibits unfair discrimination against a convicted person, a license application can still be denied if there is a direct correlation between the prior conviction and the license sought. Accordingly, the Court Page7of 8 [* 17] n the will not "reweigh" th CONC Accordingly, it is hereby disbursements to the respondent; and it is further, ORDERED that counsel for respondent is directed to serve a copy of this Order with Notice of Entry upon petitioner and FINAL DlSPOSlTl L-.] DO N Check if appropriate: Page8of 8
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