Opinion
INDEX NO, 114797/10 SEQ. NO. 001
03-30-2012
In the Matter of the Application of VERNIQUE GRIFFIN, Petitioner, v. For a Judgement Pursuant to the Provisions of Article 78 of the New York Civil Practice Law and Rules, Dr. Dora Schriro, as Correction Commissioner of the New York City Department of Correction, NEW YORK CITY DEPARTMENT OF CORRECTION and The CITY OF NEW YORK, Respondents.
PRESENT: HON.
Justice
The following papers, numbered 1 to 3 were read on this motion by petitioner for an order and judgement pursuant to Article 78.
+-----------------------------------------------------------------------------+ ¦ ¦PAPERS ¦ ¦Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ¦NUMBERED ¦ ¦ ¦ ¦ ¦ ¦1 ¦ +---------------------------------------------------------------+-------------¦ ¦Answering Affidavits - Exhibits (Memo) ¦2,3 ¦ +---------------------------------------------------------------+-------------¦ ¦Replying Affidavits (Reply Memo) ¦4 ¦ +-----------------------------------------------------------------------------+ Cross-Motion: [] Yes [×] No
In this Article 78 proceeding, Vernique Griffin (petitioner) seeks an order reversing, annulling and setting aside respondents' decision to terminate petitioner for violations of the terms of her probationary agreement dated December 9, 2010 and effective on Apri!15, 2010. Petitioner also seeks reinstatement to her position as a correction officer with the New York City Department of Correction with back pay from February 15, 2009 to April 27, 2009, to cover the time period when she was previously terminated and then reinstated subject to disciplinary charges. Respondents' oppose this application. The Court denies the petition in its entirety.
Petitioner's request for back pay is untimely. A party must commence a special proceeding under Article 78 of the CPLR by filing a petition within four months after the administrative determination becomes final and binding upon the aggrieved party (see CPLR 217[i]; Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom, of City of N.Y., 5 NY3d 30, 34 [2005]). The terms of petitioner's reinstatement and limited probation, including a determination regarding back pay, were agreed upon on December 9, 2009 and became effective and final on April 15, 2010. However, petitioner did not commence this Article 78 proceeding until November 12, 2010, more than 120 days after the determination. Accordingly, petitioner's request for back pay is time-barred and must be denied.
The Court notes that respondents allege that petitioner was on notice that she would not be receiving back pay as early as April 27, 2009.
The Court also finds that petitioner's termination for two violations of a plea agreement signed by her on December 9, 2009 and effective as of April 15, 2010, in which petitioner was placed on a one year limited probation, was not improper or unlawful (see Matter of Fortner v New York City Dept. of Correction, 280 AD2d 381 [1st Dept 2001] [petitioner was properly terminated from his position as a New York City corrections officer. . . upon respondent's determination that he violated the terms of his limited probation as set forth in his negotiated plea deal]). Pursuant to the plea agreement, petitioner was on notice that she was on limited probation for one year in resolution of disciplinary charges for excessive absenteeism. Moreover, pursuant to the plea agreement, petitioner waived her rights as a tenured employee for the probationary period and subjected herself to termination as any other probationary employee (see Notice of Petition, exhibit A).
"It is well settled that a provisional or probationary employee may be discharged for any or no reason at all in the absence of a showing that his or her dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law" (Matter of Smith v New York City Dept. of Correction, 292 AD2d 198,198-199 [1st Dept 2002], citing Matter of Brown v City of New York, 280 AD2d 368, 370 [1st Dept 2001]; see Matter of Swinton v Safir, 93 NY2d 758 [1999]). The burden is on petitioner to show by competent proof, that a substantial issue of bad faith exists, or that the termination was for an improper or impermissible reason (see Matter of Che Lin Tsao v Kelly, 23 AD3d 320, 321 [1st Dept 2006]).
Petitioner has failed to sustain her burden to demonstrate, by competent evidence, that her termination as a correction officer for violating the terms of her agreed upon probation was in bad faith (see Matter of Fortner, 280 AD2d at 382 ["petitioner adduced no evidence that his termination was effected in bad faith"]; Matter of Simpson v Abate, 213 AD2d 190 [1st Dept 1995] ["petitioner failed to meet her burden of showing that the respondent's determination to terminate her was made in bad faith"]). Moreover, the decision to terminate petitioner was rational as "[c]hronic absenteeism is a sufficient basis for terminating a probationary employee" (Skidmore v Abate, 213 AD2d 259, 260 [1st Dept 1995]).
For these reasons and upon the foregoing papers, it is,
ORDERED that the petitioner's Article 78 petition is denied and the proceeding is dismissed without costs or disbursements to the respondents; it is further,
ORDERED that respondent The New York City Department of Correction shall serve a copy of this order, with notice of entry, upon petitioner and upon the Clerk of the Court, who is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court
Enter: ______________________
PAUL WOOTEN J.S.C.
In the Matter of the Application of
FRANCES L. HALPERN,
Petitioner,
For a Judgment under Article 78 of the
Civil Practice Law and Rules,
-against
RAYMOND KELLY, as the Statutorily Designated
Hand Gun Officer and as New York City Police
Commissioner and His Successors in Office,
Respondent.
INDEX NO. 111230/11
MOTION SEQ. 001
The following papers, numbered 1 to 3 were read on this motion by petitioner for an order and judgement pursuant to Article 78.
+-----------------------------------------------------------------------------+ ¦ ¦PAPERS ¦ ¦ ¦NUMBERED¦ +--------------------------------------------------------------------+--------¦ ¦Notice of Motion/ Order to Show Cause - Affidavits - Exhibits .. ¦1 ¦ +--------------------------------------------------------------------+--------¦ ¦Answering Affidavits - Exhibits (Memo) ¦2 ¦ +--------------------------------------------------------------------+--------¦ ¦Replvinq Affidavits (Reply Memo) ¦3 ¦ +-----------------------------------------------------------------------------+ Cross-Motion: [] Yes [×] No
Frances Halpern (petitioner) commenced this proceeding by order to show cause (OSC), pursuant to CPLR Article 78, seeking a judgment annulling and reversing the final determination of the Appeal Board of the License Division of the of the New York City Police Department (License Division), which affirmed the denial of her application for a premises residence handgun license. Moreover, petitioner seeks an order directing respondent to issue petitioner a home possession handgun license on the grounds that she meets the "eligibility" and "good moral character" requirements of Penal Law § 400.00[1]. Respondent opposes petitioner's application and asserts that the License Division's decision to deny petitioner's application for a premises residence handgun license should be upheld because it was rendered after a thorough investigation and full review of the record, and it was not arbitrary, capricious or an abuse of discretion.
BACKGROUND
Petitioner is 53 years old and has been employed by the New York City Department of Education since February 2004 as a substitute teacher. Petitioner is also a duly registered security guard with the New York State Department of State Division of Licensing and works part-time as an unarmed security guard. Petitioner submitted an application for a premises residence handgun license with the New York City Police Department, License Division in October, 2010. Her application was denied by a Notice of Disapproval, dated April 5, 2011, in which the Deputy Inspector noted that her application was disapproved after an investigation revealed the following: petitioner was arrested on December 22, 2002; domestic reports involving petitioner were filed on December 22, 2002, October 14, 1995, and March 14, 1995; and an order of protection was issued against petitioner from March 26, 2003 until June 8, 2007 (see Notice of Petition, Exhibit K). Petitioner appealed this determination and received a Notice of Disapproval After Appeal, dated June 9, 2011, wherein the Appeal Board sustained the determination to deny petitioner's application (see Notice of Petition, Exhibit A). Specifically, respondent found that petitioner lacked the "good moral character" for the issuance of a handgun, due to petitioner's arrest for a domestic violence incident involving alleged child abuse, an order of protection issued between 2003 and 2007 for alleged child abuse and a history of domestic violence incidents (see Notice of Petition, Exhibit B).
On October 6, 2011, petitioner then commenced this Article 78 proceeding by OSC seeking a judgment reversing the denial of her license application on the basis that respondent's conclusions regarding her moral character were arbitrary and capricious. Petitioner alleges that it was improper for the License Division to deny her application solely on a single domestic violence incident that occurred almost 10 years ago and was dismissed and sealed by the Court (see Verified Petition, exhibit E). Petitioner avers that she possesses good moral character and that the License Division failed to conduct an adequate investigation or take into account her life since the discontinuance of the family court action almost four years ago. In support of this contention, she submits, inter alia, two notarized recommendation letters from her neighbors (see Verified Petition, exhibit D). She also offers an unsigned and unnotarized letter allegedly from her husband stating that while he has not lived with the petitioner since December, 2002 "due to our family court issues," he does not object to her having a gun in her apartment (see Verified Petition, exhibit F).
STANDARD
"Judicial review of an administrative determination is limited to whether it was arbitrary or capricious or without a rational basis in the administrative 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 2010]). The Court may not substitute its own judgment for that of the agency (see Matter of Tolliver v Kelly, 41 AD3d 156, 158 [1st Dept 2007]). "The agency's determination must be upheld if the record shows a rational basis for it, even where the court might have reached a contrary result" [Kaplan v Bratton, 249 AD2d 199, 201 [1st Dept 1998]). "A rational basis exists when the evidence adduced is sufficient to support the Commissioner's action" (Papaioannou v. Kelly, 14 AD3d 459, 460 [1st Dept 2005]).
"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 § 400.00 and Administrative Code of the City of New York § 10-131[a][1]" (Sewell v City of New York, 182 AD2d 469, 472 [1st Dept 1992] [internal citations omitted]); see Campbell v Kelly, 85 AD3d 446 [1st Dept 2011] ["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 § 400.00[1] and 38 RCNY § 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 § 400.00[1][b]; 38 RCNY § 5-02[a].
DISCUSSION
This Court finds that in reviewing the record, respondent's decision to deny petitioner's request for a premise residence 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 § 400 and 38 RCNY § 5-10, and determined that in light of her history of domestic violence incidents, an arrest in December of 2002 and an order of protection, she did not possess the moral character required for the issuance of the handgun. As there was a rational basis for denying petitioner's application for a premises residence handgun license, the respondent's determination should not be disturbed (see Hoskins v. Kelly, 50 A.D.3d 457 [1st Dept 2008] ["In light of petitioner's history of domestic violence, including an arrest and the issuance of orders of protection against him . . . respondents' determination denying his application for a . . , pistol license was not arbitrary and capricious"]; Matter of Tolliver v Kelly, 41 AD3d 156, 157-158 [1st Dept 2007]).
Accordingly, it is
ORDERED that petitioner's Article 78 petition is denied and the proceeding is dismissed, without costs or disbursements to respondent; it is further,
ORDERED that the respondent shall serve a copy of this order, with notice of entry, upon petitioner and upon the/Clerk of the Court, Who is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.
Enter: ______________________
PAUL WOOTEN J.S.C.