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

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Matter of Macaluso v New York City Dept. of Bldgs. 2013 NY Slip Op 31084(U) May 15, 2013 Sup Ct, New York County Docket Number: 104514/2012 Judge: Eileen A. Rakower 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. SCPNNED ON 51201201? [* 1] - I _ Index Number : 10451412012 MACALUSO, ROGER INDEX NO. vs. MOTION DATE NYC DEPARTMENT OF BUILDINGS MOTION SEQ. NO. I SEQUENCE NUMBER : 001 - ARTICLE78 The following papers, numbered 7 to Notice of MotionlOrder %QShow Answering Affidavits - , were read on this motion tolfor ~Ffl&v& ~ x h i b i t s - W - Exhibits S MQ(S). 1 . 3-q L pi W s ) . -liHu-- Replying Affidavits Upon the foregoing papem, it i ordered that this motion is s UNFILED JUDGMENT T l judgment has not been entered by the County Clerk hs and notice of entry cannot be served based hereon. To obtain entryvm t or authorized representative must w appear in person at the Judgment Clerk's Desk (Room 1415). b HQM, EILEEN A. RAKOWER 1. CHECK ONE: ..................................................................... ........................... .MOTION 1s: CHECK IF APFROPRIATE: ................................................ CASE DISPOSED rJ NON-FINAL DISPOSITION 2. CHECK AS APPROPRIATE: 3. SETTLE ORDER DO NOT POST 0SU5MIT ORDER 0FIDUC! \RY AQPQINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: Hon. EILEEN A. RAKOWER PART 15 Justice In the Matter of the Application of ROGER MACALUSO, * 10451412012 INDEX NO. . and mhce of entry annot be served based hereon. To obtain entry, counsel or a w t h o n z d m a h must 1 appear in person at the Judgment Clerk s Desk ( O RW THE NEW YORK CITY D E P A R OF BUILDINGS, ~ ~ ~ MOTION CAL. NO. ~ . . I ~ ,v * 6- I - Respondent. PAPERS NUMBERED Notice of Motion/ Order to Show Cause Answer - Affidavits - Affidavits - Exhibits - Exhibits ... 1.2 3,4, 5 Replying Affidavits Petitioner Roger Macaluso ( Petitioner ), a Licensed Master Plumber, brings this Article 78 petiti-onto annul respondent The New York City Department of Buildings (( Respondent ) second determination denying him a Master Fire Suppression Piping Contractor ( MFSPC ) license. Respondent opposes the petition. Petitioner had previously been issued a Master Plumber s License in January 2006. In support of his application for a Master Plumber s license, Petitioner submitted evidence of his work installing and designing plumbing systems under the direct supervision of a Licensed Master Plumber. On December 29,2007, Petitioner applied for the MFSPC license. After passing the written examination he submitted the following documentation to show that he worked in the design and install[ation] of fire suppression and piping systems in the United States in compliance with the time requirements needed for the license: 1 [* 3] 1- New York City Housing Authority, under supervision of Ben Paradiso, LMP #644 from April 14,2003 to present, a total of 4 years 8 months, title LLPlumber 7; 2- Jan Service Co., Inc., under supervision of Michael Gallagher, MFSPC #542, from December 10,2002 to April 13,2003, a total of 4 months, title (fire suppression piper fitter ; 3- Bondee EnterprisesRanshaw, under supervision of Richard Bonelli, MFSPC #714 from October 13, 1999 to December 9,2002 a total of 3 years and 2 months, title ( fire suppression pipe fitter . Petitioner also submitted affidavits from Richard Bonnelli, Michael Gallagher, John Maccarone and Benedict Paradiso. Each advised the agency that they supervised Petitioner, stated Petitioner s duties, the projects he worked on and the periods of time he worked. Mr. Bonnelli, Gallagher and Maccarone stated that Petitioner worked in the enumerated projects as a full time journeyman plumber and his duties included design and installation of plumbing and fire suppression systems. Mr. Paradiso stated that Petitioner worked for NYCHA from April 2003 to November 2006 [2 years 8 months] and his duties included design and installation of plumbing systems, Section 26-146(b) of the New York City Administrative Code provides that the applicant must have earned, by the application date, seven years experience in the design and installation of fire suppression piping systems, or four years experience in the design and installation of plumbing systems and three years experience in the design and installation of fire suppression piping systems in the United States prior to the application date for the class of license for which the application is made. By letter dated April 25,20 11, Respondent denied Petitioner s application for a MFSPC license stating, although you hold a Master Plumber license (License Master Plumber #2055), based on a review of your application, and supporting documentation, you are unable to demonstrate that you have obtained seven years practical experience in the design and installation of fire suppression systems in the United States. Respondent refused to credit Petitioner for the period from August 26, 1996 to February 16,2004, because this time was credited 2 [* 4] towards the experience needed to obtain his Master Plumber s license and because a review of fire suppression permits obtained by his supervising licensee would only allow him to be credited with two years, five months of fire suppression experience. Petitioner filed an Article 78 Petition with the Honorable Manuel J. Mendez on August 16,2011, in which he sought to have the Court review Respondent s decision denying his application for a Master Fire Suppression Piping Contractor license. By Decision and Order dated January 27,20 11, the Honorable Manuel J. Mendez granted Petitioner s application, and Respondents determination was annulled and the matter was remanded back to Respondent for reconsideration of Petitioner s application in a manner not inconsistent with this decision and in a manner that comports with the requirements of the Administrative Code. The court specifically took issue with the Respondent s refusal t o credit Petitioner with experience in obtaining his MESPC license based merely on the fact that he was gaining experience for his plumbing license at the same time, finding that interpretation was inconsistent with the Administrative Code. Specifically, the court stated, [t Jherequirement that the applicant have worked solely in the design and installation of fire suppression piping systems, during the relevant period, or that practical experience be proven through work permits of supervising licensees, is not supported in the statutory scheme. Upon reconsideration, in a letter dated August 3 1,20 12, Respondent again denied Petitioner s application for a MFSPC license, finding that he was not qualified. In the letter, Respondent states that Petitioner may not be credited with qualifying fire suppression experience while working for NYCHA, relying on statements made by Petitioner s supervising licensee Benedict Paradiso who stated that Petitioner s Eull time responsibilities at NYCHA included the design and installation of plumbing systems, not fire suppression systems. Regarding Petitioner s employment with JAM, the Respondent states that Petitioner may not be credited with qualifying fire suppression experience because his supervisor, Michael Gallagher *s correspondence with Respondent raised questions regarding [Petitioner s] performance of fire suppression design and installation work during his employ [at JAM] . Additionally, pointing to a recent interview of Petitioner taken by Respondent on April 17,2012, Respondent indicates: When asked to apportion his time between the trades [of plumbing and fire suppression at Ranshaw and United] he claimed that his first 3 [* 5] three years of experience at United (from August 1196 to October 1999) were spent performing plumbing work exclusively, while his remaining experience at United (1 month) and his time at Ranshaw (3 years) was split 50/50 between plumbing and fire suppression work. Based on his statements [Petitioner] spent approximately one month for United and half of the time he worked for Ranshaw, one year and six months, in the design and installation of fire suppression systems. Therefore, at most, he could be credited with one year and seven months of qualifying experience. Moreover, the letter says that Petitioner: failed to demonstrate that he gained three years of experience, cumulatively, in the design and installation of fire suppression systems. Working under the employ of an individual who holds a MP and a MFSPC licensee does not, on its own, adequately demonstrate the number of years of qualifying experience an applicant may claim in the design and installation of fire suppression systems when the applicant alleges that he performed both plumbing and fire suppression work during that period. Since [Petitioner s] years of experience from 1996 through 2002, was already credited towards his Master Plumber s license application, [Petitioner] was asked to explain how and when he may have gained three years of cumulative fire suppression experience in addition to the experience he gained in the design and installation of plumbing systems. Based on the aforementioned information, including [Petitioner s] Board appearance, the Department cannot credit Petitioner with three years of qualifying experience in the design and installation of fire suppression systems. Petitioner now asserts in the present Article 78 Petition before this Court that Respondent failed to reconsider his application in a manner not inconsistent with Judge Mendez s January 27,20 12 decision and the Administrative Code. It is well settled that possession of a license is a privilege, not a right, which is subject to reasonable regulation. (See, Papaioannou v. Kelly, 14 AD3d 459,788 NYS2d 378 [ 1 Dept 20051); Montanez v. City o NY Dept o Buildings, 8 Misc 3d f f 405, 797 NYS2d 863 [Sup Ct NY County 2005)J. Judicial review of a 4 [* 6] discretionary administrative action, such as the issuance of a license, is limited to finding whether there was a rational basis for the administrative action. (Sullivan County Harness Racing Assn. v. Glasser, 30 NY2d 269,283 NE2d 603,332 NYS2d 622 [ 19721). Thus, the only issue for consideration by the court is whether the administrative determination- in this case whether petitioner qualifies for the license in question- was arbitrary and capricious, or an abuse of discretion (Arrocha v. Board of Educ. Of City of NY, 93 NY2d 3 6 1? 7 12 NE2d 669,690 NYS2d 503 [1999]). An action is arbitrary if it is without sound basis in reason and is generally taken without regard to the facts. (Pel2 v. Bd. o Educ., 34 NY2d f 222,313 NE2d 321,356 NYS2d 833 [1974]). Once arational basis for the administrative determination is shown, the function of judicial review has ended, and the agency s determination must be upheld, even where the court might have reached a contrary result. (Sullivan County Harness Racing Assn v. Glasser, 30 NY2d 249,283 NE2d 603,332 NYS2d 622 [ 19721). The Respondent s decision to deny Petitioner s IvlFSPC license on August 3 1,20 12, was consistent with the Honorable Manny Mended August 16,201 1 Order as well as the Administrative Code. The decision was made after reviewing the facts, documentation, evidence presented in support of Petitioner s application, and Petitioner s testimony during his April 20 12 interview with the Board to determine how much time Petitioner actually spent on the fire suppression systems. It was not arbitrary or irrational for Respondent to conclude from the information provided that Petitioner did not have the requisite experience in the design and installation of fire suppression piping systems to meet the three year requirement. Accordingly, the decision was a proper exercise of the Respondent s discretion in issuing MFSPC licenses in New York City. Wherefore, it is hereby, ORDERED AND ADJUDGED that the Petition is denied and the proceeding i s dismissed in its entirety. [* 7] Check one: FINAL DISPOSITION X NON-FINAL DlbPOSlTlON Check if appropriate: 0 DO NOT POST 0 REFERENCE 6

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