Opinion
No. 260003/2014.
10-03-2014
In the Matter of the Application of ISABELLA CITY CARTING CORP., John Isabella, Rosemarie Isabella, and Constantino Isabella, Petitioners, for Judgment Pursuant to CPLR Article 78, v. The NEW YORK CITY BUINESS INTERGRITY COMMISSION.
Claude M. Millman, Kostelanetz & Fink LLP, New York, Stanley K. Schlein, Co-counsel, Bronx, for Petitioners. Rachel K. Mosten, Zachary W. Carter, Corporation Counsel of the City of New York, New York, for Respondent.
Claude M. Millman, Kostelanetz & Fink LLP, New York, Stanley K. Schlein, Co-counsel, Bronx, for Petitioners.
Rachel K. Mosten, Zachary W. Carter, Corporation Counsel of the City of New York, New York, for Respondent.
Opinion
KENNETH L. THOMPSON, JR., J.
Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows:
On January 3, 2014, Isabella City Carting Corp., John Isabella and RoseMarie Isabella obtained a temporary restraining order enjoining and restraining respondent, New York City Business Integrity Commission, from revoking Isabella City Carting Corporation's license or taking any steps to revoke or otherwise implement the revocation of said license. Thereafter, on June 23, 2014, Respondent and Petitioners appeared before this Court arguing whether Petitioners' application, specifically a preliminary injunction pursuant to Section 6301 of the CPLR and Article 78 thereof, should be granted for the same relief obtained in the temporary restraining order of January 3, 2014.
Petitioners contend that the decision and order of respondent, Business Integrity Commission, issued on December 18, 2013, was arbitrary and capricious, that it was determined in violation of lawful procedure and that it was an abuse of discretion. After the Court heard complete arguments on the Petitioners' Article 78 proceeding the respondent, Business Integrity Commission, notified the Court that it also moved for a change of venue of the Article 78 proceeding from Bronx County to New York County where the respondent, Business Integrity Commission has its' principal office of business. The motion for change of venue was basically argued after all the issues relating to the Article 78 petition were already heard.
Accordingly, Respondent's motion for change of venue is denied. Similarly, Petitioners' request pursuant to Section 6301of the CPLR for a preliminary injunction against Respondents and Petitioners' Article 78 proceeding are denied for the following reasons.
The uncontroverted facts established that the petitioner, Isabella City Carting Corporation, was granted renewal licenses to continue operating in the waste collecting business from September 1, 2000 to July 18, 2014 based upon it not being associated with any sort of individuals that might impugn the integrity of Isabella City Carting Corporation. Specifically, one of the former principals of Isabella Carting Company, Constantino Isabella, was debarred from being in the waste collection business as of August 20, 1998. When said license for waste collection was issued to Isabella City Carting Corporation it was with a clear understanding that Constantino Isabella would not be involved in the business of Isabella Carting Corporation. A current principal of Isabella City Carting Corp., John Isabella, appeared before the Business Integrity Commission and gave testimony under oath on June 28, 2013. A pertinent part of his testimony was clearly false and he acknowledged this. It was first stated by him that his father, Constantino Isabella no longer did any work for the company. This was clearly false.
The court is not persuaded by the Petitioners' arguments that Constantino Isabella was accompanying his son while doing business or that the 84 year old man just had nothing to do and was just “ “hanging out” and that he did not receive any wage or remuneration for any service he performed for petitioner, Isabella City Carting Corp.
As a result of Constantino Isabella's debarment he transferred his interest in Isabella Carting to his son, John Isabella and his wife RoseMarie Isabella. Constantino Isabella knew he was not to be involved in this corporate waste collection business. As per the testimony of John Isabella conducted on June 28, 2013, he recanted and admitted that his father was intimately involved in Isabella City Carting Corp's business. This was in complete violation of Isabella City Carting Corp's renewal license applications and also the affidavit and agreement that Constantino Isabella had signed. Clearly under CPLR 7803(3) the revocation of petitioner's, Isabella City Carting Corp.'s waste collection license issued after the hearing before the Business Integrity Commission, was not a violation of lawful procedure nor could it be said that this was an abuse of discretion. See In the Matter of Gebbia v. City of New York, 106 A.D.2d 287 [1st Dept 1984] citing, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 232–235 [1974] and Matter of Harris v. Mechanicville Cent. School Dist., 45 N.Y.2d 279, 284. [1978].
A preliminary injunction pursuant to CPLR 6301 and Article 78 thereof seeking to overturn a decision by an authorized administrative agency should not be based upon a squall of prevarication. Moreover, an agency that is charged with the duty of insuring integrity, fair dealing and rooting out corruption and the influence of organized crime in a particular industry must be given deference when such nefarious influences are so manifest.
Based upon the record before this Court the respondent, Business Integrity Commission, did not act arbitrarily or capriciously and did not abuse it discretion in revoking the waste collection license of petitioner, Isabella City Carting Corp., by its decision of December 18, 2013.
All other applications by Petitioners and Respondents not addressed in this decision and judgment are hereby denied. Petitioners' application for preliminary injunction pursuant to CPLR 6103 and Article 78 thereof are denied. Petitioners' petition is dismissed. All stays are vacated.The foregoing shall constitute the decision and judgment of the Court.