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7/27/2019 NEW YORK POLICE DEPARTMENT DECLARES STEVE ROMBOM UNFIT TO HOLD FIREARMS LICENSE
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SUPREME COURT OFTHE STATE OF NEW YORK
COUNTY OF NEW YORK-_„__„._„. -.—_____ ___•_>__» „______ — . _ , ______.*. .___ "V"
In the Matter of the Application of
STEVEN P. ROMBOM, Index No. 114616/08
Petitioner,
For a Judgment Pursuant to Article 78 of the Civil Practice
Law and Rules.
-against-
RAYMOND W _ KELLY, as Police Commissioner of the
City of New York,
Respondent.
RESPONDENT'S MEMORANDUM OFLAW
Preliminary Statement
Respondent, Raymond W. Kelly, as Police Commissioner of the City of New
York, submits this memorandum of law in opposition to petitioner's application for an order
pursuant to Article 78 of the Civil Practice Law and Rules ("CPLR") annulling the New York
Police Department's ("NYPD") decision to terminate petitioner's premises-residence handgun
license andiM^
The NYPD's decision to revoke petitioner's firearm license and permit was
rational and supported by substantial evidence. The City has a substantial and legitimate interest
in regulating the possession of firearms. The courts have upheld this interest by recognizing
licensing officers' broad discretion in awarding and revoking firearm licenses and permits. The
NYPD's License Division ("License Division") revoked petitioner's premises-residence handgun
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license an d rifle/shotgun permit because he did not satisfy the requirements to possess such
firearms. First, petitioner demonstrated that he did not have the necessary good moral character.
Petitioner submitted false information an d deceived the License Division fo r seven years.
Second, petitioner has a prior revoked license. Third, petitioner failed to prove that he primarily
resided in New York City. Accordingly, the Court should uphold the License Division's
decision and dismiss the petition.
STATUTORY FRAMEWORK
The relevant statutory provisions are set forth in the NYPD's Verified Answer,
and the NYPD respectfully refers the Court to H 1 f 37-57 of the Verified Answer.
STATEMENTOF THERELEVANTFACTS
The factual background is set forth in the NYPD's Verified Answer, and the
NYPD respectfully refers the Court to H it 58-83 of the Verified Answer.
ARGUMENT
POINT!
f T H ETO
THE APPELLATE DIVISION FOR
SUBSTANTIAL EVIDENCE REVIEW. _The CPLR allows for the review of administrative hearings to assess "whether a
determination made as a result of a hearing held, and at which evidence was taken, pursuant* to
direction of law is, on the entire record, supported by substantial evidence." CPLR § 7804(4).
Where a trial court concludes that the case presented requires a substantial evidence review, the
court must transfer the proceeding to the Appellate Division. See Mason v. Dep't of Bldgs-, 759
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N.Y.S.'2d 470, 472 (1st Dep't 2003). "CPLR 7804(g) authorizes the court in which the Article
78 proceeding is commenced to decide any issues which would terminate the case if no issue of
substantial evidence is raised. Otherwise,, thesection requires the court to transfer the case to the
Appellate Division for disposition.'5 See Al Turi Landfill v. N.Y. State Dep't of EnvtL
Conservation. 98 N.Y. 2d 758. 760 (2002),
Here, a substantial evidence review is required because petitioner appeals a final
agency determination that was rendered after an administrative hearing at which evidence was
taken, as directed by law. Accordingly, the Court should transfer this proceeding to the
Appellate Division, First Department.
POINT II
THE NYPD'S DECISION TO REVOKE
PETITIONER'S FIREARM LICENSE AND
PERMIT WAS BASED ON SUBSTANTIAL
EVIDENCE AND IT WAS REASONABLE
AND NOT ARBITRARY, CAPRICIOUS, OR
AN ABUSE OF DISCRETION.
The decision by the NYPD's License Division to revoke petitioner's premises-
residence handgun license and rifle/shotgun permit was supported by substantial evidence and
not arbitrary or capricious. It is uncontested that petitioner provided false information an d
deceived the License Division for many years. Moreover, in order to possess a handgun license,
a licensee must primarily reside in New York City, and a licensee cannot have prior revoked
licenses. Petitioner did not prove he primarily resided in the City, and his prior license was
revoked. Because the record establishes that petitioner does not have the moral character to
possess firearms and does no t satisfy the requirements for a handgun license, the Court should
uphold the License Division's revocation.
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A. Applicable Standard of Review
Pursuant to Administrative Code Section 10-131 and Penal Law Section 400.00
the Police Commissioner has full authority to grant or deny firearm permits. In exercising this
power, the Police Commissioner is vested with broad discretion. See Perlov v. Kelly. 21 A.D.3d
270 (1st Dep't 2005). See also. Orgel v. DiFiore. 303 A.D.2d 758 (2sd Dep't 2003); Dorsev v.
Teresi, 26 A.D.3d 635 (3rd Dep't 2006). Judicial review of an agency's exercise of discretion is
limited in scope.
Section 7803 of the CPLR provides in pertinent part:
The only questions that may be raised in a
proceeding under this article are:
3. whether a determination was made in violation
of lawful procedure, was affected by an error of law
or was arbitrary and capricious or an abuse of
discretion, including abuse of discretion as to the
measure or mode of penalty or discipline imposed;
or .
4. whether a determination made as a result of a
hearing held, and at which evidence was taken,pursuant to direction by law is, on the entire record,
supported by substantial evidence.
Substantial evidence means t&a^
reasonable inferences that can be drawn from the record and must have a rational basis in the
law. "Rationality is what is reviewed under both the substantial evidence rule and the arbitrary
and capricious standard." See Pell v. Board of Educ. 34 N.Y.2d 222, 231 (1974). A court may
overturn an administrative action only if the record reveals no rational basis for it. See id. at 230;
Purdv v. Kriesberg. 47 N.Y.2d 354, 358 (1979). The Court of Appeals has defined substantial
evidence as more than "bare surmise, conjecture, speculation or rumor" and "less than a
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preponderance of the evidence" and has stated that it consists of "such relevant proof as a
reasonable mind may accept as adequate to support a conclusion or ultimate fact." See 300
Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 180 (1978). See also.
Consolidated Edison v. State Div. of Human Rights. 77 N.Y.2d 411, 417 (1991); Allen v.
Dowling, 214 AD.2d 446 (1st Dep't. 1995). If the reviewing court finds the determination is
"supported by facts or reasonable inference that can be drawn from the record and has a rational
basis in the law, it must be confirmed." See American Telephone &Telegraph Co. v. State Tax
Comm'n, 61 N.Y.2d 393, 400 (1984).
The reviewing court does not examine the facts de novo to reach an independent
determination. See Marsh v. Hanley, 50 A.D.2d 687 (3rd Dep't. 1975). The reviewing court
"may not substitute its own judgment of the evidence for that of the administrative agency, but
should review the whole record to determine whether there exists a rational basis to support the
findings upon which the agency's determination is predicated." See Purdy, 47 N.Y.2d at 358. If
the acts of the administrative agency find support in the record, its determination is conclusive
even if the court would have reached a contrary result. See Sullivan Co. Harness Racing Assn.
v. Glasses 30 RY.2d 269, 278 (1972). Unless the reviewing court finds that the agency acted in
excess of its jurisdiction, in violation of a lawful procedure, arbitrarily, or in abuse of its
discretion t no alternative but to confirm the agency's decision. SeePell, 34 N.Y.2d
at 231.
Furthermore, "[i]t is well-settled that the construction given statutes and
regulations by the agency responsible for their administration, if not irrational or unreasonable,
should be upheld." See Howard v. Wvman, 28 N.Y.2d 434, 438 (1971). See also, Bernstein v.
Tola, 43 N.Y.2d 437, 448 (1977); Albano v. Kirbv, 36 N.Y,2d 526, 532 (1975). While statutory
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construction is the function of the courts, "where the question is one of specific application of a
broad statutory term in a proceeding in which the agency administering the statute must
determine it initially, the reviewing court's function is limited/' See Board v. Hearst
Publications, 322 LLS, 1117 131 (1944). The administrative determination is to be accepted by
the courts "if it has 'warrant in the record' and a reasonable basis in law." See Lower Manhattan
Loft Tenants v. New York City Loft Bd, 1Q4 A.D,2d 223, 224 (1st Dep't 1984).
As stated in Tommy & Tina, Inc. v. Department of Consumer Affairs, 95 AJX2d
724 (1stDep't 1983), affd, 62 N.Y.2d 671 (1984):
[AJn administrative agency's construction and
interpretation of its own regulations and of the
statute under which it functions is entitled to the
greatest weight, (Matter of Herzog v. Joy, 74
AJX2d 372, 375.) Absent an arbitraryor capricious
regulation or interpretation of said regulations/
courts should defer to the agency.
A court may no t substitute its judgment for that of the agency, and its role is
limited to a review of whether a rational basis exists to support the agency's determination. See
Rudin ManagementCo. v. New York State Div. of Hous. & Community Renewal, 215 A.D.2d
'243 (1st Dep't 1995).
B. The License Division's Decision Satisfies the Standard of Review
The revocation of petitioner's firearm license and permit was not arbitrary,
capricious, or an abuse of discretion. The Division reached its decision after an investigation,
and the decision is rationally related to the record, which demonstrates petitioner does not satisfy
the requirements to possess firearms.
To possess a handgun or a rifle/shotgun, the licensee/permittee must first be of
good moral character. See 38 RCNY § 5-02(a) and 10 NYC Admin. Code § 303(a)(2). Second,
there must be no good cause to deny the license or permit. See 38 RCNY § 5~02(h) and 10 NYC
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Admin. Code § 303(a)(9), Third, with handgun licenses, the licensee's primary residency must
be in New York City, and the licensee cannot have any prior revoked licenses. See 38 RCNY §
5-02(g). The License Division may revoke a holder's permit or license at any time for failing to
satisfy any one of these requirements. See38 RCNY § 5-21 - 5-22 and 10 NYC Admin, Code §
303(g).
Petitioner does not have the good moral character required to possess a firearm
license or permit. The License Division has broad discretion to determine who is fit to possess a
firearm. See Penal Law 400.00(1). See also, Brescia v. McGuire. 509 F. Supp. 243, 246-47
(S.D.N.Y, 1981) ("New York State's strong public policy is to restrict the possession of
handguns by imposing mandatory penal sanctions . . . and authorizing broad discretion in
licensing and revocation procedures.") (internal citations omitted); Lipton v. Ward, 116 A.D.2d
474 (1st Dep't 1986); Matter of St. Oharra v. Coluccj 67 A.D.2d 1104 (4th Dep't 1979); Harris
v. Codd. 57 A.D.2d 778, 779 (1st Dep^t 1977) ("[T]he welfare and safety of the general public is
a factor of great weight in issuance of a pistol permit."), afFd, 44 N.Y.2d 978 (1978); Greenbcrg
v.Bratton. N.Y.LJ., Jan. 30, 1996, at 25 (Sup. Ct.
RY.Co.).
In this case, it is documented and uncontested that petitioner conspired against
and deceived the License Division for many years. When petitioner sought to renew his business
carry handgun license in 1997, petitioner submitted a letter from a friend that stated i^titionSf
leased office space from him. See Exhibit L. In 2005, a routine field investigation revealed that
the office space was just a mail drop. See id As a result, the License Division revoked
petitioner's business carry handgun license. See id. Based on the deceit petitioner exhibited
with his business carry handgun license, H.O. Shields rationally concluded that petitioner lacked
the adequate moral character to possess a premises-residence handgun license and a rifle/shotgun
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permit. See Exhibit T. Good moral character is a substantial requirement for possessing a
firearm and petitioner's deceit undermined petitioner's character. See Lipton v. Ward, 116
AJD.2d 474 (1st Dep't 1988). See also, Pelose v. Ctv Ct of Westchester Cty., 53 AJD.2d 645
(2nd Dep't 1976),
Petitioner's argument that he was prejudiced because he did not have an
opportunity to address the 2005 revocation is without merit. See Verified Petition, at H 32. The
revocation of petitioner's business carry handgun license should have resulted in the immediate
revocation of all of petitioner's firearm licenses and permits. See 38 RCNY § 5-02(d). Most
likely, because of a clerical error, the License Division did not revoke petitioner's premises-
residence handgun license and rifle/shotgun permit See Exhibit T. This was an error that the
License Division was entitled to correct and properly corrected. Caruso v. Ward, 143 Misc.2d 5
(N.Y.Sup.Ct. 1989), affd 160 AJX2d 540 (1st Dep't 1990). Moreover, the facts surrounding the
2005 revocation and petitioner's deceit are not in dispute, and they are supported bysubstantial
evidence. Therefore, the legal conclusions that H.CX Shields derived from the 2005 revocation
did not prejudice petitioner. Most importantly, petitioner requested a hearing in 2005 and had
the opportunity to defend his actions. After the Division revoked his business carry handgun
license, petitioner chose not to appeal. See Exhibit L. Consequently, petitioner cannot now seek
toplace in question the License DivisioH^^QO^decisfenx ;* •
In addition to not satisfying the good moral character requirement to possess
firearms, petitioner does not satisfy the requirements to possess a handgun. In order to posses a
handgun license, a licensee cannot have a prior revoked license and the licensee's domicile must
be in the county in which the licensee applied to possess a handgun. See Mahoney v. Lewis, 199
AD.2d 734 (3rd Dep't 1993). First, the record establishes that petitioner's business carry
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handgun license was revoked in 2005. See Exhibit L. Second, petitioner failed to prove his
domicile was in New York City. In an administrative hearing, the burden of proof is on the
licensee. See 45.NYC Charter § 1046(cX2): Zolzer v. NYS Comptroller, 196 A.D.2d 934, 601
(3rd Dep't 1993).
There is no evidence from a neutral third-party that petitioner primarily resides in
New York City. When asked for identification, petitioner gave the License Division a Texas, not
a New York State, driver's license. See Exhibit A. By law, an out of state person who moves to
New York State must apply for a New York State driver's license within thirty days and
surrender his or her out of state license. See Exhibit Q. Petitioner has had a Texas driver's
license since 1984, and New York State's DMV has no record of petitioner ever applying for a
New York State driver's license. See Exhibits A and R. The DMV only has a record of
Petitioner applying for a Non-Driver identification card a few months before trying to retrieve
his firearms. See Exhibit Q. There are two noteworthy facts about this ID. First, petitioner
waited until 2007 to acquire it, which undermines his allegation that he has primarily resided in
New York City fo r over forty years. Se e Verified Petition, at I F 20. Second, the address on the
card is not petitioner's alleged residence but a P.O. box. See id.
Seeking proof that petitioner's primarily resided in New York City, Investigator
ferdwn researctied^wtietli^r peffi^ner wais fe tereS to:;vote in th& City. %Investigator Mown
discovered that petitioner was not registered to vote in the City or in Texas, See Exhibit R.
Investigator Brown also asked petitioner to produce bills that could confirm he
resided at the alleged address. Petitioner was unable to produce either an electric or gas bill
Petitioner claimed that he did not pay for gas or electric. See Exhibit A. When asked to produce
a lease, petitioner conveniently stated that he also did not have one. See id. Petitioner did
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produce New York State and City tax records. However, these records also list a P.O. box as his
address and not petitioner's alleged residence. See Exhibit U,
Petitioner argues that the testimony of his building's super and a letter from the
building's owner prove his alleged domicile. See Verified Petition, at 11 16. The credibility of
witnesses that testify in an administrative hearing is the sole province of the hearing officer. See
Remmers v « DeBuono. 241 AJD.2d 587, 588 (3rd Dep't 1997). In reviewing the hearing officer's
decision, a court must defer to the officer's assessment of the evidence and the credibility of
witnesses. See Sewcil v. New York, 182 A.D.2d 469,473 (1st Dep'l 1992).
Here, H.O. Shields found that both the super's testimony and the letter from the
building owner were not credible. Regarding the super, ELO. Shields found that the super was
less than forthcoming with information about petitioner, gave conflicting answers, and expressed
a clear bias. The following conversation, which took place during the administrative hearing,
demonstrates the super's reluctance to cooperate with the License Division's investigation.
ATTORNEY: Basically do you remember what
they [Police Officer Levine and her partner] asked?
MR. MINKOWICZ: They ask me, they ask me if I
see him often.
ATTORNEY: And what was your answer?
ATTORNEY: Okay, And what, what did you tell
them?
MR. MINKOWICZ: Ah I tell them that I see him,
that I see him, not so often, it is not so often everyday. I didn't know what to answer, basically....
HEARING OFFICER: Why don't you answer the
question right now, how often do you see Mr.
Rombom?
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MR. MINKOWICZ; Ah, I see him, it's a difficult
question because I, sometimes I see him like everyday, .
HEARING OFFICER: So how often do you see Mr.
Rombom? It's not a difficult question.
MR. MINKOWICZ: I mean this month, or two
months ago?
HEARING OFFICER: How often do you see Mr.
Rombom?
MR. MINKOWICZ:^ Depends which month I said,
or which day. Sometimes I see him two, three times
a day, sometimes I see him once every other week.
See Exhibit C,at 30/9-31/2.1
In addition to showing that the super was less than forthcoming, the testimony
contradicts what the super actually told Police Officer Levine. During the field visit, the super
told Police Officer Levine that the last time he saw petitioner was a few weeks ago and that
petitioner was often away. See Exhibit P. As for the super's bias, it was highlighted when the
petitioner's attorney asked the super why he had told the police he could not talk about the
building's tenants.
MR. MINKOWICZ: Answer the question. Ah7 I
said I'm not authorized to, to do it after the question
was if he lives here legal or^somethiDg like tiis^
, . $ome;^M^t& , to say ti^
number and the address to the office where we have
all files about all tenants which are in the building.
ATTORNEY: Why did you say that?
MR, MINKOWICZ: Why?
ATTORNEY: Yeah.
1Citations to the hearing's transcript are formatted aspage number followed by line number.
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MR, MINKOWICZ: Urn, Mr. Romboin said like it
was during the time when I am building a few times
I had visits from I believe FBI and when we spoke
with Mr. Rombom he said listen, don't say if you
don't have to to anybody anything about me
because Fm working, I'm doing these special thingsand I don't want anybody to know about and you
know, just, just say you don't know or saying
whatever he said to say, you don't have to, don't
say anything about me if you don't have to.
See Exhibit Cat31/20 - 32/11.
Based the super's contradictory answers and bias, H.Q* Shields did not find
credible the super's eventual estimate that petitioner was present 60% of the year. See Exhibit T.
Further undermining the super's estimate is his admission that he does not socialize with
petitioner andonly goes into petitioner's apartment twice a year. See Exhibit C, at 34/6 - 34/12.
H.CX Shields also had a sound basis for finding the letter from the building owner
no t credible. In 2005, the License Division revoked petitioner's business carry handgun license
because petitioner conspired with a landlord and submitted a letter containing false information.
Here, petitioner is once again resting on a letter submitted by a landlord, and there is no
documentation supporting this letter other than a biased witness. See Exhibit J. As a result, H.O.
Shields rationally found the letter not credible. Moreover, the letter only states that petitioner is
a tenant of the subject premises and that he does not have a lease. Tenancy alon0 is not sufficient
to prove a person's domicile. See Mahoney v. Lewis. 199 A.D,2d 734 (3rd Dep't 1993).
The arbitrary and capricious standard only requires that a rational basis support
the License Division's determination. To possess a firearm, a licensee or permittee must have
. good moral character. In addition, a handgun licensee must primarily reside in New York City,
and the licensee cannot have any revoked licenses. The record establishes that petitioner does
not meet any of the requirements. Therefore, contrary to petitioner's assertion, there is not one
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but three grounds for revoking petitioner's premises-residence handgun license and rifle/shotgun
permit. See Verified Petition, at f 15. Accordingly, the License Division's decision was rational
and supportedby substantial evidence.
Petitioner's argument that both H.O. Shields and Investigator Brown admitted to
petitioner having a New York domicile is without merit. See Verified Petition, at H I T 20 and 22.
Petitioner's reference to paragraph 17 of H.CX Shields's decision takes a statement by the hearing
officer out of context In the first sentence of paragraph 17, H.CX Shields states, "[h]is [referring
to petitioner] primary residence for the past 24 years has been at [the subject premises]." See
Exhibit T. This sentence is a restatement of petitioner's testimony and not a conclusion reached
by H.O. Shields. The paragraph immediately prior to this sentence begins with "[t]he licensee
testified...." See id. The sentence immediately following this alleged admission states,
u[a]ccording to him [referring to petitioner]...." See id. When taken out of context, the first
sentence of paragraph 17 is indeed misleading. However, when read in context, it becomes
evident that the sentence is a restatement of petitioner's testimony and not an independent
conclusion reached by H.O. Shields.
Similarly, when Investigator Brown's statement is closely analyzed, it does no t
amount to an admission about petitioner's domicile. During the administetive hearing,
petitioner's attorney asked Investigator Bro\vn several questions. One question was Whether
Police Officer Levine had confirmed that petitioner was a tenant or resident of the subject
premises. Investigator Brown responded, u[c]orrect" See Exhibit C, at 15-18 — 15-20. First it is
important to note that Investigator Brown only confirmed that petitioner was a tenant or a
resident of the subject premises. The underlying issue is not whether petitioner is a tenant or
resident of the subject premises but whether the subject premises qualify as petitioner's domicile.
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Second, petitioner's attorney misrepresented Police Officer Levine's findings. Police Officer
Levine's report does not conclude that petitioner was a tenant or resident of the subjectpremises.
See Exhibit P. The report only recounts Police Officer Levine's interaction with the super and
does not make any factual conclusions. See id. Therefore, the alleged admissions thatpetitioner
references do not advance or prove that petitioner's domicile is in New York City.
Lastly, Petitioner's argument that H.O. Shields $ decision should be reversed
because the laws and rules do not clearly define what constitutes a "good cause" for revocation is
equally without merit. See Verified Petition, at 11 34. The Penal Law, the New York City
Administrative Code, and the Rules of the City of New York provide that the License Division
may deny an applicant's firearm license or permit for good cause. See Penal Law 400.00; 38
RCNY § 5-02(a); 10 NYC Admin. Code § 303(a). The Division's authority to revoke a firearm
license or permit for good cause, a fourth and separate ground for revocation in this case, has
been widely upheld and confirmed. See Perlov v. Kelly. 21 A.D.3d 270 (1st Dep't 2005). See
also, Qrgel v. DiFiore. 303 A.D.2d 758 (2sd Dep't 2003); Dorsev v. Teresi, 26 AJX3d 635 (3rd
Dep't 2006). Petitioner's flagrant violations, as previously discussed, provide ample good cause
for terminatinghis firearm license and permit.
POINT III
''oON STATUTORY VIOLATIONS AND DID
NOT SELECTIVELY ENFORCE ITS POLICY.
Petitioner's allegations that the terms and conditions of his license and permit
were selectively enforced have no basis. See Verified Petition, at 11 34. The License Division
based the revocation of petitioner's premises-residence handgun license and rifle/shotgun permit
on well-recognized grounds, not suspect classifications. The regulations governing handguns
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an d rifles/shotguns make it clear that the possessor of such firearms is responsible fo r knowing
the rules and regulations that govern han dg un s and rifles/shotguns. See 38 RCNY §§ 3-03 and
5-33. The regula tions also ma ke it clear that the License Division may revoke a license or perm it
at any time if the licensee or permittee violates any of the rales and regulations. See 38 RCNY
§§ 5-21 and 5-22 and 10 NYC Admin, Code § 10-303(g).
Here, petitioner does not possess the necessary good moral character to possess a
firearm an d does not satisfy the requirements to possess a handgun. Petitioner's lack of moral
character is supported by seven years of deceit, durin g which time he misrepresented the
existence of his business office. See Exhibit L. Rega rding the handgun requirements, petitioner
ha d the burden of proving that his domicile was in New York City and that he did not have any
prior revoked licenses. See 38 RCNY § 5-01. A burden that he failed to meet. See Exhibit T.
Therefore, the License Division revoked petitioner's license and permit because he was in
violation of three separate, well-established requirem en ts.
To prove an allegation of selective enforcement, a party must demonstrate there
wa s clear and intentional discrimination against him or her. "The Equal Protection Clause
requires that the government treat all similarly situated people alike." Se e Harien Assocs. v.
Village of Mmeola. 273 F.3d 494, 499 (2d Cir. 2001) (citing City of Gleburne v. Gleburne
fc This principle protects against the selective-enforcement
of laws applied "with an evil eye and an unequal hand, so as practically to make unjust and
illegal discriminations between persons in similar circumstances _ _ _ _ _ " See Yick W o v. Hopkins,
118 U.S. 356, 373-74 (1886). "The unlawful administration by state officers of a state statute
fair on its face, resulting in its unequa l application to those who a re entitled to be treated alike, is
not a den ial of equal protection unless there is shown to be present in it an element of intentional
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or purposeful discrimination ... a discriminatory purpose is not presumed; there must be a
showing of clear and intentional discrimination." See Snowden v. Hughes. 321 U.S. 1, 8 (1944)
(internal citations and quotations omitted). Petitioner does not allege in his petition that there
was intentional discrimination.
Moreover, petitioner failed to allege that respondent's purported selective
enforcement was motivated by a constitutionally impermissible standard such as race or religion.
The New York Court of Appeals has explained,
[tjo invoke the [equal protection] right successfully,
however, both the "unequal hand" and the "evil
eye" requirements must be proven - to wit, there
must be not only a showing that the law was not
applied to others similarly situated bu t also that th eselective application of the law was deliberately
based upon an impermissible standard such as race,
religion or some other arbitrary classification.
See 303 West 42nd Street Corp. v. Klein. 46 N.Y.2d 686, 693 (1979).
As an administrative agency, the License Division is vested with broad discretion
in interpreting its rules. See Perlov v. Kelly. 21. A.D-3d 270 (1st Dep't 2005). See also, Orgel v.
DiFiore, 303 A.D.2d 758 (2sd Dep't 2003); Dorsev v. Teresi 26 A.D.Bd 635 (3rd Dep't 2006).
Given the public safety implications of firearms, the License Division has a substantial and
legjtiinate ii ^ acceptable character possess such weapons.
See'MaJionev v: tewk 199 A^ d 73^ Hxxi Dep3t 1 93). See alsov District of Columbia v.
Heller. 128 S. Ct. 2783, 2809 (U.S. 2008). By deceiving the License Division for many years
and not proving his New York City domiciliary, petitioner undermined the Division's substantial
and legitimate interest. Accordingly, the Court should deny petitioner's selective enforcement
claim.
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POINT IV
PETITIONER IS NOT ENTITLED TO
D I S C O V E R Y IN THIS ARTICLE 78P R O C E E D I N G :
Petitioner is not entitled to discovery in this Article 78 proceeding, and his request
fo r disclosure should be denied. See Verified Petition, at I F 34 .
Under CPLR Section 408, a party seeking discovery in a Article 78 must request
permission f r om the court. In addition, the party must show that the documents sought are
material and necessary. See General Elec. Co. v. Macejka, 117 A.D.2d 896 (3rd Dep't 1986). If
the discovery sought is not necessary to resolve a relevant factual issue, discovery is not
appropriate. See In re Shore. 109 A.D.2d 842 (2d Dep't 1985). See also, Amot-Ogden
Memo r ial Hosp. v. Blue Cross of Central New York. 122 Misc.2d 639 (Sup.Ct. Chemung Co.
1984) (discovery was refused in an Article 78 proceeding because there were no disputed issues
o f fact). "(Tjt is a well-established rule that the nature and purpose of summary proceedings are
such that disclosure should rarely be granted[.j" Pamela Equities Corp. v. Louis Frev Co.. 120
Misc 2d 281, 281 (N.Y:Civ.Ct 1983),
Because there are no factual issues in this case, discovery is not necessary.
Petitioner's discovery requests are in connection to his selective enforcement claim and "good
cause" ai^iime& See Verified :Petition, at^34. Petitioner's selective enfO T cement c i ?
"good cause" argument both fail and are not relevant because the record establishes that
petitioner does not satisfy three well-recognized requirements to possess a handgun and a
rifle/shotgun. Petitioner does not have the adequate moral character. He does not satisfy the
residency requirement, and he has a prior revocation. The blatant and documented deceit
petitioner exhibited rules out any issue of fact concerning the revocation and need for discovery.
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For these reasons, petitioner's request for discovery in this Article 78 proceeding
should be denied,
CONCLUSION
The NYPD's decision to revoke petitioner's premises-residence han dg un license
and rifle/shotgun permit was based on substantial evidence, and it was reasonable and rational.
Accordingly, the petition should be denied in all respects,
Dated: New York, New YorkJanuary 12, 2009
MICHAEL A. CARDOZO
Corporation Counsel of theCity of New York
Attorney fo r Respondent100 Church Street, Roo m 5-177New York, New York 10007
(212) 788-8683
William H. VidalAssistant Corporation Counsel
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