Matter of Tsang v Kelly

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Matter of Tsang v Kelly 2012 NY Slip Op 31366(U) May 14, 2012 Sup Ct, New York County Docket Number: 112392/11 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. SCANNED ON 512212012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY HON. PAUL WOOTEN PRESENT: PART Justice 7 In the Matter of the Application of DAVID TSANG, Petltloner, 1I239211 I INDEX NO. For a Judgment under Article 78 of the Civil Practice Law and Rules, MOTION SEQ. 001 -against- RAYMOND KELLY, as Police Commissioner of the City of New York, THE CITY OF NEW YORK aed THE NEW YORK CITY POLICE DEPARTMENT, Respondents. MAY 2 2 2012 i d t W YC3iiK COUl'd I-)' (;l.EHK'S OFI ICE The fallowing papers, numbered 1 to 5, were read on this motion by petltloner for an order and judgment pufsuant to Artlcle 78. PAPERS NUMBERED Notice af Motion1 Order to Show Cquse - Affidavits - Exhibits ... Answering Affldavlts - Exhlblts (Memo) Replying Affidavits (Reply Memo) Cross-Motion: r j Yes No David Tsang (petitioner) commenced this proceeding, pursuant to CPLR Article 78, seeking a judgment annulling and reversing respondents' final determination denying his application for a Carry Business or Carry Guard haqdgun nse. Petitioner also seeks an order directing respondents to issue petitioner a Carry Business or Carry Guard handgun license Respondents oppose petitioner's application and assert that the New York P o b e Department (NYPD) License Division's decision to deny petitioner's application for a Carry l BusinesS or Carry Guard handgun license should be upheld hecquse it was rendered after i thorough investigatioo and full review of the petitioner's history and pdst employment record with the NYPD, and it was not arbitrary, capricious gt an abuse of discretion. Page 1 of 5 \ [* 2] BACKGROUND From 1990 to 1996 petitiwer served as an NYPD police officer, and he has since received a New York State Watch Guard and Patrol Agency License. Petitioner is a duly registered security guard with the New York State Department of State Division of Licensing and allegedly works for his own security compilny. Petitioner submitted an application for a Carry Business or Carry Guard handgun license with the NYPD License Division on January 18, 201 1. His application was denied by a Notice of Disapproval, dated April 6, 201 1 in which the Deputy Inspector noted that his application was disapproved after an investigation revealed the following: Prior disapproval of a target permit application and prior dismissal from the NYPD (see Notice of Petition, exhibit D) Petitioner qppealed this determination and receivkd a Notice of Disapproval After Appeal, dated July 1 201 1, wherein the Appeal Bgard sustained the determination to deny petitioner s applikation (see Notice of Petition, exhibit F). Specifically, the Appeal Board found that petitioner demonstrates a lack of charakter and fitness for a license to possess firearms due to petitioner s dismissal from the NYPD for violatino your oath of office in that you wrongfully accepted sums of US currency in connection with your brother s illegql house of prostitution (see Notice of Petition, exhibit F). Uporl reviewing the petitioner s employment history, the License Division found that he had been terminated from the NYPD after a departmental trial in which he was found guilty of impcoper caqduct, including accgpting money for his brother, Peter t sang, in cQnnectionwith said Peter TSang s partnership in an I illeg9l house of prostitution. . , I (see Verified Answer, exhibit A). On October 31, 201 1, petitioner then commenced this Article 78 proceeding seeking a judgment reversing the denial of his handgun license Appliwtion on the basis that respondents conclusions regarding his moral character were arbitrary and capricious. Petitioner relies, in part, on two Article 78 decisions by our sister Courts in which the denial of various opet ator Page 2 of 5 [* 3] licenses by the Department of Buildings was appealed (see Matter of C a m v Limandri, 201 1 NY Slip Op 31932 [Sup Ct, New York County 201 1, Schlesinger, J.]; Matter of Penessa v. Petitioner Limandri, Sup Ct, New York County, Aug. 12, 201 1, Jaffe, J. index No. 101322/1I). alleges that it was improper for the License Division to deny his application based upon his unfavorable termination from the NYPD because it occurred almost 15 years ago and also because petitioner has never been charged or convicted of a crime. Moreover, petitioner asserts that the License Division failed to take into consideration that petitioner was issued a Watch, Guard and Patrol Agency license from the Department of State, which requires that he be a person of good character, competency and integrity (see Verified Petition, 7 18). He alleges that the determination of the New York Department of State to issue him the Watch, Guard and Patrol Agency license should be conclusive as to his good character and that the NYPD should be estopped from making any contrary determination (id. at 7 19). STANDARD Judicial review of an administrative determination is limited to whether it was arbitrary or capricious or without a rational basis in the adrqinistrative record, and once it is determined that the agency s conclusion had a sound basis in reason, the judicial function comes to an end (Matter of Rucker v NYC/NYPD License Div., 78 AD3d 535, 535 [ 1st Dept 20101). The Court may not substitute its own judgment for that of the agency (see Matter of Tolliver v Kelly, 41 AD3d 156,158 [lst Dept 20071). The agency s determination must be upheld if the record shows a rational basis for it, even where the cdurt might have reached a contrary result (Kaplan v Bratton, 249 AD2d 199, 201 [ l s t Dept 19981). A ration31 baqis exists when the evidence adduced is sufficient to support the Commissioner s action (Papaioannou v. Kelly, 14 AD3d 459, 460 [l st Dept 20051). Page3of 5 [* 4] The possession of a handgun license is a privilege rather than a right. The New York City Police Commissioner has broad discretion to grant licenses in accordance with the provisions of Penal Law 3 400.00 and Administrative Code of the City of New York 5 10- 131[a][l] (Sewell v City of New York, 182 AD2d 469, 472 [ I s t Dept 19921 [internal citations omitted]; see Campbell v Kelly, 85 AD3d 446 [ I s t Dept 201 I ] [ Possession of a handgun license is a privilege, not a right, and as such, it is subject to the broad discretion of the Police Commissioner ]). Moreover, pursuant to Penal Law 5 400.00(1) and 38 RCNY 5 5-02, which sets forth the parameters for issuance of a premises license, no license shall be issued where the applicant lacks good moral character (see Penal Law 5 400.00[1][b]; 38 RCNY § 5-02[a]). DISCUSSION This Court determines upon a review of the record that respondents decision to deny petitioner s application for a Carry Business or Carry Guard handgun license was not arbitrary and capricious or an abuse of discretion and had a rational basis (see CPLR 7803[3]; Matter of Rucker, 78 AD3d at 535). The License Division reviewed petitioner s application, in accordance with Penal Law 5 400.00 and 38 RCNY 5 5-10, and determined that in light of the circumstances of his dismissal from the NYPD, petitioner lacked the moral character and fitness required for the issuance of the Carry Business or Carry Guard pistol license. As there was a rational basis for denyiqg petitioner s gpplication for a Carry Business or Carry Guard handgun license, respondents determination should not be disturbed (see e.g. Matter of Tblliver v Kelly, 41 AD3d 156 [ I s t Dept 20071). CONCLUSION Accordingly, it is ORDERED that petitioner s Article 78 petition is denied and the proceeding is dismissed, Page 4 of 5 8 8 [* 5] without costs or disbursements to respondents; it is further, ORDERED that the respondent the New York City Police Department shall serve a copy of this order, with notice of entry, upon petitioner and upon the Clerk of,the Court, who is Bb directed to enter judgment accordingly. This constitutes the Dec:ision and Order of the Court. / Dated: s-/ f /1 L Check one: Enter: FINAL DISPOSITION Check if appropriate: : 0 fl DO NOT POST Page 5 of 5 NON-FINAL DISPOSITION u REFERENCE

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