Mascarella v LiMandri

[*1] Mascarella v LiMandri 2012 NY Slip Op 52441(U) Decided on July 20, 2012 Supreme Court, New York County Billings, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 20, 2012
Supreme Court, New York County

James Mascarella, Petitioner

against

Robert D. LiMandri, as the Commissioner of the New York City Department of Buildings, Respondent



101324/2011



For Petitioner

Robert J. La Reddola Esq.

600 Old Country Road, Garden City, NY 11530

For Respondent

Amy J. Weinblatt, Assistant Corporation Counsel

100 Church Street, New York, NY 10007

Lucy Billings, J.

I.BACKGROUND

Respondent petitioned in the New York City Office of Administrative Trials and Hearings (OATH) to revoke petitioner's Hoisting Machine Operator Class 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 for both grounds was petitioner's conviction of extortion under the federal Hobbs Act, 18 U.S.C. § 1951(a), upon his guilty plea September 27, 2004. After the OATH hearing November 8, 2010, the Administrative Law Judge (ALJ), recommended a one year suspension of petitioner's license. In a final determination dated January 5, 2011, respondent revoked petitioner's license.

II.APPLICABLE STANDARDS

An ALJ's determination after a hearing is entitled to significant weight. 80 Lafayette Assoc. v. Gibson, 59 AD3d 231, 233 (1st Dep't 2009); Albany Manor Inc. v. New York State Liquor Auth., 57 AD3d 142, 144 (1st Dep't 2008); Grossberg v. Christian, 245 AD2d 118 (1st Dep't 1997); Promesa, Inc. v. New York State Dept. of Health, 204 AD2d 179 (1st Dep't 1994). Respondent may reverse the ALJ's determination only if substantial evidence supports respondent's contrary conclusion. 80 Lafayette Assoc. v. Gibson, 59 AD3d at 233; Mancini v. New York City Dept. of Envtl. Protection, 26 AD3d 178, 179 (1st Dep't 2006); Promesa, Inc. v. New York State Dept. of Health, 204 AD2d 179.

The court may vacate a final determination following an administrative hearing if that "determination was made in violation of lawful procedure, was affected by an error of law or was [*2]arbitrary and capricious or an abuse of discretion." C.P.L.R. § 7803(3). This court may not rule on whether a determination following a hearing was unsupported by substantial evidence, but must transfer that question to the Appellate Division. C.P.L.R. §§ 7803(4), 7804(g). Before transferring the proceeding, however, this court must rule out the other grounds for vacating or remanding the administrative decision. C.P.L.R. §§ 7803(3), 7804(g); Earl v. Turner, 303 AD2d 282 (1st Dep't 2003). The record here sets forth grounds to vacate respondent's determination independent of the substantial evidence question.

III.VIOLATION OF LAWFUL PROCEDURE

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 license is required or where continuing the license poses an unreasonable risk to the safety of persons or property. NY Correct. Law § 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. Duffy v. LiMandri, 93 AD3d 411 (1st Dep't 2012); Inglese v. LiMandri, 89 AD3d 604, 605 (1st Dep't 2011).

Although the ALJ 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. NY Correct. Law § 753(1)(d). During that time, as New 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 relevant to the licensed work. NY Correct. Law § 753(1)(g). At the OATH hearing, petitioner presented two witnesses, who testified that petitioner was well known in the work force as a safe hoist operator, that he was a trustworthy employee, and that his criminal conviction did not affect his ability to perform the work.

IV.RESPONDENT'S DISQUALIFICATION

Petitioner complains that respondent initiated the proceedings to revoke his license and then became the adjudicator of those proceedings. Respondent minimizes his involvement in the revocation proceedings as indirect, emphasizing he was not a witness. He maintains that nothing in the record demonstrates how his fairness or impartiality was undermined.

The 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. New York State Liq. Auth., 79 NY2d 266, 278 (1992); Rosenblum-Wertheim v. New York State Div. of Human Rights, 213 AD2d 231, 232 (1st Dep't 1995); State Div. of Human Rights v. Dorik's Au Natural Rest., 203 AD2d 163, 164 (1st Dep't 1994). Serving as both prosecutor and adjudicator presents at minimum an appearance of unfairness or impartiality that requires recusal. General Motors Corp.-Delco Prods. Div. v. Rosa, 82 NY2d 183, 188 (1993); Beer Garden v. New York State Liq. Auth., 79 NY2d at 279; State Div. of Human Rights v. Dorik's Au Natural Rest., 203 AD2d 163. Respondent has not shown that his disqualification will prevent the hearing and determination of the revocation proceeding against petitioner. General Motors Corp.-Delco Prods. Div. v. Rosa, 82 NY2d at 188. See Baker v. Poughkeepsie City School Dist., 18 NY3d 714, 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. Corning Glass Works v. Ovsanik, 84 NY2d 619, 626 (1994); General Motors Corp.-Delco Prods. Div. v. Rosa, 82 NY2d at 190; Deluxe Homes of Pa. v. State of New York Div. of Human Rights, 205 AD2d 394 (1st Dep't 1994). This decision constitutes the court's order and judgment [*3]granting the petition to that extent, otherwise denying the petition, and dismissing this proceeding. C.P.L.R. §§ 7803(3), 7806.

DATED: July 20, 2012

_____________________________

LUCY BILLINGS, J.S.C.