Matter of Friedman v Kelly

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Matter of Friedman v Kelly 2009 NY Slip Op 33326(U) October 16, 2009 Sup Ct, New York County Docket Number: 110367/07 Judge: Joan A. Madden Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 1012812009 [* 1] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. JQAN Ar NlADDEN - NEW YORK COUNTY PART 11 Justice -w MOTION SEQ.NO.: 003 1 MOTION CAL. NO.: Defendant. The following papers, numbered 1 to pbb'j were read on t h ~ mvtrmpO/for s AfhbL Notice of Motion/ Order to Show Cause -Affidavits - Exhbits Answering Affidavits -Exhibits I Replying Affidavits 7'd t C I & I PAPEG NUfv4BEPED ' Y Check one: FINAL DISPOSITION 'Do-Mcl 3b-st- J.S.C. ] NON-FINAL DISPOSITION [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 11 -X In the Matter of the Application of JASON FRIEDMAN, Petitioner, - _ _ _ _ _ _ _ _ _ _ _ I _ _ - _ _ _ - - - - - - - - - - - - - - - - - - For a Judgment under Article 78 of the Civil Practice Law and Rules Granting Petitioner a Pistol License, -against- Index No. 110367/07 JOANA. MADDEN, J.: In this Article 78 proceeding, petitioner seeks an order directing respondent to issue to petitioner a restricted handgun license permitting possession of a gun at a specific business or residence (the License) (see 38 RCNY 5 5-01 [a]). Petitioner further seeks an order permitting him to amend the Verified Petition and to enlarge the record to include a letter from Thomas Prasso (Prasso), the Director of the License Division of the Police Department of the City of New York (the License Division), dated June 24, 2008. Petitioner avers that this letter was provided to him in response to this Court's prior order and judgment in this matter dated April 17,2008 (Prior Order).' Petitioner also seeks reversal of respondent's determination to deny petitioner a home premises possession license on the grounds that denyng him such a license violates the Second Amendment of the Constitution. Familiarity with the Prior Order is assumed, and the 1 Petitioner's application to restore the case to the calendar was previously granted by order of this court dated December 22, 2008. 1 - [* 3] facts will be repeated here only as necessary. Previously, petitioner commenced this proceeding after respondent denied petitioner s appeal of respondent s determination denying petitioner s application for the License. Respondent denied petitioner s appeal, by notice dated March 28, 2007, due to: -Your arrest history for Aggravated Harassrncnt and Harassment. -You were thc subject of an Order of Protection in 2005. -You were psychologically disqualified from employment by the Department of Correction in 2004. (Prior Order, at 4 [citation and internal quotation marks omitted]). This court granted petitioner s CPLR Article 78 application to the extent of remanding this matter to the respondent to expand the record concerning the investigation and reasoning underlying the determination. for reconsideration. The matter was remanded as the record did not indicate respondent s reasoning as to why petitioner s single misdemeanor arrest, which was dismissed, and related order of protection impacted on petitioner s qualifications. Respondent s reasoning was significant in light of petitioner s claim that the arrest and order of protection against him were in retaliation for a complaint he made for which he received an order of protection, and were the product of a family dispute. Nor did the record indicate that the respondent examined the underlying basis for the Department of Correction s (DOC) determination that petitioner was not psychologically qualified to be a corrections officer. After remand, Prasso sent petitioner s counsel the June 24, 2008 letter (Prasso Letter). Petitioner s unopposed application to enlarge the record to include the Prasso Letter and to amend his verified petition is granted, The Prasso Letler states that petitioner s application was denied based on instability in his personal life, including treatment in the year before his 2 [* 4] application with the psychotropic medication Seroquel in therapy related to an abusive relationship and the loss of his mother. The letter further states that in December 2004, petitioner was arrested on charges of harassment and aggravated harassment, and that charges were not immediately dismissed but rather an order of protection was issued effective for six months. Finally, the letter indicates that DOC Sdisqualification of petitioner due to psychological reasons was troubling since DOC officers are authorized to carry guns. Decisions made by administrative agencies are subject to judicial review under Article 78 of the CPLR. The court may inquire as to whether a determination was made in violatioii of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion (CPLR 7803; see Mutter of PartnershQ 92 LP v State of N. Y Div. of Hous. & Coi~zmu~ity Renewt-ll, 46 AD3d 425, 428 [ 1st Dept 20071, afld 11 NY3d 859 [2008]). An agency s determination concerning a pistol license generally will be upheld where there exists in the record a rational basis for it (Matter ofFmtag v Kerik, 295 AD2d 1 14 [ 1st Dept 20021). It is well settled that a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion [internal quotation marks and citation omitted] (Mutter o Pel1 v Board ofEduc. o f f Union Free School Dist. No. I of Towns o Scarsdctle & Murnaroneck, Westchester County, 34 f NY2d 222, 232 [1974]). Arbitrary action is without sound basis in reason and is generally taken without rcgard to the facts (id.at 231). Contrary to petitioner s argument that Director Prasso s letter was a rubber stamping of the License Division s prior decision, and that nothing in it responds to the Prior Order s directive to expand on the underlying reasons for denying the License, the court concludes that 3 [* 5] respondent has expanded on the reasoning underlying its determination. Specifically, the Prasso ~ Letter reveals that petitioner s application was in part denied because of respondent s findings concerning petitioner s mental health treatment, including psychotropic medication in the years immediately prior to petitioner s submission of an application for the License. Respondent also stated that notwithstanding petitioner s claim that the arrest and order of protection were in retaliation for a complaint he made against the complainant, that concerns remained since the court issued an order of protection effective for six months. Finally, the letter states that the DOC S rejection was relevant as corrections officers are authorized to carry guns. While the court may not have amved at the same conclusion as Prasso, the record shows that respondent has expanded the record. The record reflects that petitioner has sought assistance when confronted with personal difficulties and petitioner s motivation to resolve his personal issues is apparent. However, from the record as a whole, iiicluding the temporal proximity of petitioner s application for the license and his treatment with psychotropic medications and the issuance of an order of protection against him, it cannot be said that respondent s denial of petitioner s application for a handgun license was arbitrary, capricious or irrational. Petitioner s argument that the denial of the license violates the Second Amendment of the Constitution based on United States Supreme Court s decision in District of Columbia v Heller (554 US at -, 128 S Ct 2783 [2008]), is also unavailing. In Heller, while the Supreme Court struck down a local government ordinance totally banning hand gun possession, thc Court also stated that an individual s right to keep and bear a r m s for self-defense within the home is not absolute and may be limited by reasonable governmental restrictions (People v Perkins, 62 AD3d 1160, 1161 [3d Dept], lv. denied, 13 NY3d 748 [2009]). Indeed, the Court identified 4 [* 6] several presumptively lawful regulatory measures, including prohibition of the possession of fireaniis by those with mental illness, and noted that it named but a few examples of permissible rcgulations, and not an exhaustivc list (128 S Ct at 2816-2817, 2817 n 26). In addition, recently, in M a l o m y v C uomo (554 F3d 56 [2d Cir 2009]), the Second Circuit discussed HeZZer stating that it did not invalidate the longstanding principle that the Second Amendment applies only to limitations the federal government seeks to impose on this right (id.at 58). New York s handgun liceiising scheme is not a complete ban on haiidguiis. In addition, petitioner points to nothing in IIeller that would change the result in this matter. Heller does not addrcss the Article 78 standard, and petitioner does not challenge any specific , g i n licensirig statute or regulation. Accordingly, respondent s dctennination is not arbitrary or capricious, or affected by ail error of law, and pelitioncr is not entitled to ai1 order directing rcspondent to issue a handgun license to him. CONCLUSION T n view of the above, it is ORDERED that petitioner s application to aineiid the verified pctitioii and enlarge the record is grantcd; and it is furthcr ORDERED and ADJUDGED that petition is denied and the procceding is dismisscd. Dated: Octobc&,2009 ENTER: 5

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