Matter of Serra v New York City Dept. of Bldgs.

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Matter of Serra v New York City Dept. of Bldgs. 2013 NY Slip Op 30085(U) January 16, 2013 Sup Ct, New York County Docket Number: 103555/12 Judge: Cynthia S. Kern 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART PRESENT: Justice Index Number : 103555/2012 SERRA, RALPH INDEX NO. MOTION DATE vs NYC DEPARTMENT OF BUILDINGS MOTION SEQ. NO. Sequence Number : 001 ARTICLE 78 The fallowing papers, numbered Ito ___ I were read on this motion tolfor Notice of MotionlOtderto Show Cause Answering Affidavits Replying Affidavits - Exhibits -Affidavits -Exhibits INOW, INOW. IW s ) . Upon the foregoing papers, it I ordered that this motion is s w 2 + t n 3 -7 n w L fi r FILED LL w .. K 33 E s LII) k35 k!g $ Kg z NEW YORK COUNTY CLERK'S OFFICE :5 -f g sg I& Dated: 1. CHECK ONE: I \ 1 \ [, ! a, ..................................................................... $ a NON-FINAL DISPOSITION CASE DISPOSED ........................... MOTION IS: GRANTED 0DENIED CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 2. CHECK AS APPROPRIATE: 3. ,J.S.C. 0DO NOT POST GRANTED IN PART 0OTHER SUBMIT ORDER 0 0FIDUCI ZRY APPOINTMENT C REFERENCE l [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 55 ~~~~~~~ In the Matter of the Application of RALPH SERRA, Petitioner, For an Order Pursuant to Article 78 of the Civil Practice Law and Rules, -against- Index No. 103555/12 DECISION/ORDER FILED THE NEW YORK CITY DEPARTMENT OF BUILDINGS, Recitation, as required by CPLR 22 19(a), of the papers considered in the review of this motion for : Papers Notice of Petition and Asdavits Annexed.................................... Affirmation in Opposition.,.......................................................... Replying Affidavits...................................................................... Exhibits.. .................................................................................... Numbered 1 2 3 4 Petitioner Ralph Serra ( petitioner ) brought this petition pursuant to Article 78 of the Civil Practice Law and Rules ( CPLR ) seeking to annul, vacate and set aside a determination made by the New York City Department of Buildings (the DOB ) dated April 18,2012. In its decision, the DOB denied petitioner s application for a Site Safety Manager s Certificate. For the reasons set forth below, the petition is denied. The relevant facts are as follows. On or about January 19,2010, petitioner applied to take the Site Safety Manager examination. On the application, petitioner stated that he was qualified [* 3] to receive a Site Safety Manager Certificate because he had eight years practical experience in construction supervision within the last ten years and five years supervising the construction of major buildings. On the application, petitioner also indicated that he was employed wt ih Tishman Construction from September 1994 until January 20 10 and that while he worked for Tishman Construction, he L overs[aw]/[s]upervise[d] construction activities on major buildings including Hoisting-Safety-Maintenance of jobsites and [wlorker assignments. Additionally, petitioner stated on the application that he satisfactorily completed a 40-hour Site Safety Manager Course. Petitioner took and passed the Site Safety Manager examination on May 27,20 10. Petitioner was thereafter required to submit a Background Investigation Questionnaire and all required documents to the DOB s Buildings Special Investigations Unit (the BSIU ) within 60 days of passing the examination. On or about June 20,2010, petitioner submitted to BSIU a Background Investigation Questionnaire and the additional documentation purporting to show his qualifications for the Site Safety Manager Certificate. In the Employment Section of the application, petitioner alleged that between January 2000 and June 2010, he was employed by Tishman Construction ( Tishman ) in the capacity of a laborer and General Labor Foreman. While employed by Tishman, plaintiff alleged his duties included cleaning pedestrian walkways, installing fire extinguishers by staircases, supervised workers engaged in general housekeeping, the installation and maintenance of fall protection, hoisting and delivery operations and the dewatering of a site. Petitioner also submitted letters from his Tishman supervisors dated June and July 2010 which largely mirrored the information he provided on his application. On July 21,201 0, petitioner met with BSIU Investigator Schultz who informed petitioner 2 [* 4] that the duties and responsibilities he had listed on his application may not qualify him for a Site Safety Manager Certificate and that he needed to submit additional letters with more information regarding his duties. On petitioner s Verification of EmploymentExperience Form dated August 20,2010, Lap Yan, petitioner s former supervisor, stated that petitioner was a General Labor ForemdSupervisor from May 2010 and that in that capacity, he supervised the maintenance of the jobsite, supervised flagmen and supervised the fencing of pedestrian walkways for the project. Mr. Yan added that Applicant has worked on major bldgs. but this project does not qualify as a major bldg. Petitioner also provided the DOB with a signed and notarized letter dated August 27,20 10 from Joseph Capone, the Vice President of Tishman Construction verifying that petitioner was employed by them and providing a list of some of the buildings petitioner worked on and a generalized list of some of petitioner s duties. On January 24,2012, petitioner, in a final attempt to establish that he had the requisite qualifications, submitted a copy of his 32-hour Scaffold Builder Certificate and his Fire Site Safety Certificate to the DOB. By letter dated January 18,2012, DOB informed petitioner that his application was denied due to [i Insufficient practical experience. The DOB explained that While [petitioner] may have worked on major buildings for five years, he did not obtain the required eight years experience in construction supervision. According to the documentation provided the candidate did not show that he obtained the required full time experience directly supervising employees working in relevant construction trades in furtherance of building construction based on the description of his duties and responsibilities. All the letters (six) from his supervisors at Tishman state [petitioner s] title was that of a General Labor Foreman and described his daily duties as: Supervise general housekeeping; supervise the installation and maintenance of fall protection; supervise the dewatering for the project site; supervise all temporary scaffold installation; supervise hoisting and delivery operations. These duties and responsibilities would not be considered full time experience directly supervising employees working in 3 [* 5] relevant construction trades in furtherance of building construction. By letter dated April 3,2012, petitioner requested that the DOB reconsider its determination as there was a misunderstanding of the experience requirements that [petitioner] submitted. Petitioner added that [ilt is also clear that [he has] more than fulfilled the requirements of having eight (8) years of supervisory experience in the last ten years in High RiseNajor Building Construction. By letter dated April 18,2012, the DOB denied petitioner s request for reconsideration and reaffirmed its determination denying petitioner s application as he did not provide any new information as part of [his] request. By Notice of Petition dated August 15, 2012, petitioner commenced the instant Article 78 proceeding seeking, inter alia, a judgment reversing, annuling and setting aside the DOB s determination denying his application for a Site Safety Manager Certificate. On review of an Article 78 petition, [tlhe law is well settled that the courts may not overturn the decision of an administrative agency which has a rational basis and was not arbitrary and capricious. Goldstein v Lewis, 90 A.D.2d 748,749 (1 Dep t 1982). In applying the arbitrary and capricious standard, a court inquires whether the determination under review had a rational basis. Halperin v City of New Rochelle, 24 A.D.3d 768,770 (2d Dep t 2005); see Pell v Board o Educ. o Union Free School D s .No. I of Towns OfScarsdale h Marnaroneck, f f it Westchester County, 34 N.Y .2d, 222,23 1 (1974)( [r]ationality is what is reviewed under both the substantial evidence rule and the arbitrary and capricious standard. ) The arbitrary or capricious test chiefly relates to whether a particular action should have been taken or is justified ,..and whether the administrative action is without foundation in fact. Arbitrary action is without sound basis in reason and is generally taken without regard to facts. Pell, 34 N.Y.2d at 4 [* 6] 23 1 (internal citations omitted). In the instant action, the court finds that the DOB s denial of petitioner s application for a Site Safety Manager Certificate was made on a rational basis. Petitioner applied for a Site Safety Manager Certificate pursuant to New York City Administrative Code ( Admin. Code ) 8 28402.2(2), which requires that an applicant establish by satisfactory proof that he/she [hlas eight years of construction supervision experience within the 10 years prior to application, including five years supervising major buildings as that term is defined in chapter 33, and within one year prior to application has satisfactorily completed a 40-how course approved by the department. Admin. Code. 4 28-402.2(2). However, the DOB rationally denied petitioner s application on the ground that petitioner did not establish that he had the requisite eight years of experience directly supervising employees working in relevant construction trades [e.g., plumbers, masons, architects, electricians, engineers, and demolition subcontractors] in furtherance of building construction. The DOB rationally found that as reflected by his own documentation, petitioner s application and letters from his supervisors, petitioner s experience was primarily related to housekeeping and maintenance, tasks which do not encompass the scope of work required of Site Safety Managers. Accordingly, petitioner s request for relief under Article 78 of the CPLR muling, vacating and setting aside the DOB s denial of his application for a Site Safety Manager is denied. The petition is hereby dismissed in its entirety. This constitutes the decision and order of the court. Dated: \ \ I6 113 J.S.C.

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