Matter of Borkan v State of New York

Matter of Borkan v State of New York 2008 NY Slip Op 09482 [57 AD3d 245] December 4, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

In the Matter of Burton Borkan, Petitioner,
v
State of New York et al., Respondents.

—[*1] Sidney Baumgarten, New York, for petitioner.

Andrew M. Cuomo, Attorney General, New York (Cecelia C. Chang of counsel), for respondents.

Determination of respondent Department of State, dated November 15, 2007, denying petitioner's application to renew his private investigator's license upon a finding that he lacks the requisite good character and integrity (General Business Law § 72 [1]), unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Eileen Bransten, J.], entered February 7, 2008), dismissed, without costs.

Substantial evidence supporting the determination includes petitioner's stipulation agreeing to, inter alia, the dissolution of a not-for-profit corporation that he purportedly ran for the purpose of preventing cruelty to children, in settlement of an action brought by the Attorney General against the corporation alleging, according to the stipulation, that petitioner, inter alia, engaged in conduct that gave the false impression that the corporation was a police department or other agency of the State. The evidence also includes a press release issued by the Attorney General's office announcing the stipulation and stating, inter alia, that the corporation did not engage in any legitimate child protective work yet solicited contributions as if it did, and that petitioner distributed badges, identification cards and parking placards to the corporation's members that misused the State's seal and name. It does not avail petitioner that the stipulation recites that it is not an admission of liability—surely a reasonable person could accept the stipulation and press release as adequate to support the conclusion that petitioner does not have the good character and integrity required of private investigators (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). No basis exists to disturb the Administrative Law Judge's findings discrediting petitioner's testimony that he did not engage in the wrongdoing recited in the stipulation and press release (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]). The penalty of denial of license renewal does not shock our sense of fairness (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233 [1974]). Concur—Mazzarelli, J.P., Friedman, Gonzalez, Buckley and Sweeny, JJ.