Opinion
11548 Index 155878/19
05-21-2020
In re FLAG CONTAINER SERVICES, INC., Petitioner–Appellant, v. The BUSINESS INTEGRITY COMMISSION, etc., Respondent–Respondent.
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellant. James E. Johnson, Corporation Counsel, New York (Susan Paulson of counsel), for respondent.
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Susan Paulson of counsel), for respondent.
Acosta, P.J., Renwick, Webber, Gesmer, JJ.
Judgment, Supreme Court, New York County (Arthur F. Engoron, J.), entered June 24, 2019, denying the petition to vacate respondent's determination, dated June 12, 2019, which denied petitioner's application for the renewal of its trade waste license, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
In light of the totality of the conduct of petitioner and its related company, with which it shared principals, respondent's denial of petitioner's application to renew its trade waste license is rational and not arbitrary and capricious (see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 230–231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ; see e.g. Matter of C.I. Contr. Corp. v. New York Bus. Integrity Commn., 128 A.D.3d 450, 9 N.Y.S.3d 36 [1st Dept 2015] ). Respondent's stated reasons for the denial include the indictment of one of petitioner's principals, petitioner's history of safety violations, which resulted in three fatalities at petitioner's work site and the work site of its related company, and petitioner's past submission of false and misleading information to respondent, i.e., failing to disclose that one of its principals continued to work for its related company without being identified on the latter's applications as a principal or an employee (see Administrative Code of City of N.Y. § 16–509). Under the circumstances, respondent rationally declined to consider a lesser penalty.
Contrary to petitioner's contention, respondent provided the requisite notice and opportunity to be heard (Administrative Code § 16–509[a] ), and was not required to hold a hearing (17 RCNY 2–08[a]; Matter of Interstate Materials Corp. v. City of New York, 48 A.D.3d 464, 465, 849 N.Y.S.2d 787 [2d Dept. 2008] ). Petitioner failed to show that further discovery was likely to be "material and necessary to the prosecution or defense of this proceeding" ( Stapleton Studios v. City of New York, 7 A.D.3d 273, 274–275, 776 N.Y.S.2d 46 [1st Dept. 2004] ).