Opinion
No. 2021-03727 Index No. 601360/21
05-29-2024
In the Matter of James Stoll, Respondent, v. County of Nassau, et al., Appellants.
Thomas A. Adams, County Attorney, Mineola, NY (Jackie L. Gross and Robert F. Van der Waag of counsel), for appellants. Scott J. Gilmore, Massapequa Park, NY, for respondent.
Thomas A. Adams, County Attorney, Mineola, NY (Jackie L. Gross and Robert F. Van der Waag of counsel), for appellants.
Scott J. Gilmore, Massapequa Park, NY, for respondent.
MARK C. DILLON, J.P., LINDA CHRISTOPHER, LARA J. GENOVESI, BARRY E. WARHIT, JJ.
DECISION & ORDER
In a proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the Nassau County Police Department dated January 18, 2021, revoking the petitioner's pistol license, the County of Nassau and the Nassau County Police Department appeal from a judgment of the Supreme Court, Nassau County (Leonard D. Steinman, J.), entered April 30, 2021. The judgment, in effect, granted the petition to the extent of rescinding the revocation of the petitioner's pistol license and suspending the petitioner's pistol license pending an investigation and further determination by the Commissioner of the Nassau County Police Department as to whether the suspension should be continued, rescinded, or converted to a revocation.
ORDERED that the judgment is affirmed, with costs.
The petitioner, a retired detective with the New York City Police Department, had been issued a pistol license by the Nassau County Police Department (hereinafter the NCPD) in 2007, which was subsequently renewed. The petitioner commenced this proceeding against the County of Nassau and the NCPD pursuant to CPLR article 78 to challenge a determination of the Commissioner of the NCPD dated January 18, 2021, revoking his pistol license. The petitioner alleged, among other things, that, while in the process of going through a divorce, he participated in a 30-minute virtual session with a psychiatrist on January 11, 2021. The petitioner further alleged that, on January 18, 2021, he received a letter from the NCPD, Pistol License Section, revoking his pistol license, effective immediately. The letter provided that, "[a]fter a complete and thorough investigation by the Pistol License Section," it had been determined that revocation of the petitioner's pistol license was warranted based on a report from a mental health professional pursuant to Mental Hygiene Law § 9.46 that the petitioner was likely to "engage in conduct that will cause serious harm to self or others." The petition alleged, inter alia, that the determination revoking the petitioner's pistol license was arbitrary and capricious.
In the judgment appealed from, the Supreme Court, in effect, granted the petition to the extent of rescinding the revocation of the petitioner's pistol license and suspending the petitioner's pistol license pending an investigation and further determination by the Commissioner of the NCPD as to whether the suspension should be continued, rescinded, or converted to a revocation. The court determined, inter alia, that the NCPD's determination to revoke-rather than suspend-the petitioner's pistol license was arbitrary and capricious because it was done without conducting an investigation of any kind or providing the petitioner any opportunity to be heard. The County and the NCPD appeal. We affirm.
Initially, contrary to the appellants' contention, the petitioner did not fail to exhaust his administrative remedies. "[O]ne who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law" (Watergate II Apts. v Buffalo Sewer Auth., 46 N.Y.2d 52, 57; see Matter of 5055 N. Blvd., LLC v Incorporated Vil. of Old Brookville, 201 A.D.3d 932, 933-934). Here, the letter from the NCPD, Pistol License Section, notifying the petitioner of the revocation of his pistol license stated that "[a]ny appeal you desire to initiate must be to the New York State Office of Mental Health, and not to the [NCPD]." However, the petitioner demonstrated that the remedy offered by the New York State Office of Mental Health-submitting an application for a "Certificate of Relief from Disabilities"-was not available to him, since he had not been involuntarily committed to a mental health facility. Under the circumstances, the petitioner sufficiently demonstrated that no administrative remedies were available to address his claim (see Matter of Bolin v Nassau County Bd. of Coop. Educ. Servs., 52 A.D.3d 704, 707).
Turning to the merits of the petition, "[a] licensing officer's determination will not be disturbed unless it is arbitrary and capricious" (Matter of McCarthy v Sini, 172 A.D.3d 1069, 1070; see Matter of Hack v Town Bd. of Town of Putnam Val., 219 A.D.3d 489, 489-490). "A determination is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" (Matter of Costco Wholesale Corp. v New York State Liq. Auth., 125 A.D.3d 775, 776 [internal quotation marks omitted]; 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, 231).
Mental Hygiene Law § 9.46(b) provides, inter alia, that "when a mental health professional currently providing treatment services to a person determines, in the exercise of reasonable professional judgment, that such person is likely to engage in conduct that would result in serious harm to self or others, he or she shall be required to report, as soon as practicable, to the director of community services, or the director's designee, who shall report to the division of criminal justice services whenever he or she agrees that the person is likely to engage in such conduct" (see Matter of Warmouth v Zuckerman, 138 A.D.3d 752, 753). That statute further provides, in relevant part, that information transmitted to the division of criminal justice services may only be used, among other things, "for determining whether a license issued pursuant to section 400.00 of the penal law should be suspended or revoked" (Mental Hygiene Law§ 9.46[b]).
Here, the record reflects that the NCPD, Pistol License Section, received notice from the New York State Police on January 18, 2021, at 6:56 a.m., that the petitioner was identified as a person likely to engage in conduct resulting in serious harm to self or others. Approximately 35 minutes later, at 7:31 a.m., the NCPD, Pistol License Section, sent the petitioner the letter revoking his pistol license, effective immediately. The NCPD Pistol License Section Handbook provides, however, that "[t]he policy of the [NCPD] is to immediately suspend the pistol license of any licensee who violates any of the terms and conditions of the license or this Handbook and commence an investigation to determine whether or not the license should be revoked." Violations of the terms and conditions of the pistol license include, among other things, "[m]ental illness of a licensee," any "mental condition which impairs the licensee's ability to own, carry or safeguard a firearm," and "the receipt of psychiatric treatment." Under these circumstances, the record reveals that the NCPD, Pistol License Section, did not conduct a proper investigation prior to revoking the petitioner's pistol license, as required by its own policies and procedures.
Accordingly, the Supreme Court properly, in effect, granted the petition to the extent of rescinding the revocation of the petitioner's pistol license and suspending his pistol license pending an investigation and further determination by the Commissioner of the NCPD as to whether the suspension should be continued, rescinded, or converted to a revocation (cf. Matter of Hahn v Williams, 107 A.D.3d 1346, 1346-1347).
The appellants' remaining contentions are without merit.
DILLON, J.P., CHRISTOPHER, GENOVESI and WARHIT, JJ., concur.