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Arbuiso v. New York City Dep't of Buildings

July 28, 2009


Judgment, Supreme Court, New York County (Edward H. Lehner, J.), entered February 19, 2008, which denied the petition seeking to annul respondent's determination denying petitioner's application for reinstatement of his master plumber's license and dismissed the proceeding, affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Friedman, Buckley, Catterson, Acosta, JJ.


On June 14, 1999, petitioner's master plumber license expired. Seven years later, on August 11, 2006, petitioner submitted a written request for reinstatement of the license to the New York City Department of Buildings (hereinafter referred to as the "DOB"). In the letter, he notified the DOB that he had inadvertently allowed his license, which he received in June 1995, to lapse*fn1. In support of his reinstatement, petitioner submitted his resume which stated that he had worked as a plumber at the following positions: Manhattan Plumbing and Heating from February 1997 through April 1998, specializing in "all aspects of commercial plumbing"; Sheraton Hotels from April 1998 to February 2000, specializing in "all areas of plumbing, heating and engine rooms for the hotel complex"; the Riverdale Country School from February 2000 to April 2005, overseeing "all areas of plumbing/heating/gas"; and for Turner Construction Co. from April 2005 to the date of his application, "[o]verseeing all aspects of construction."

On September 15, 2006, by letter, the DOB informed petitioner that it had denied his application. In the letter, the DOB requested that petitioner demonstrate active and legal engagement in the plumbing trade during the period in which his license was expired.

Subsequently, petitioner submitted an undated letter to the DOB detailing his work experience. The letter stated that, while at Sheraton Hotels, petitioner was the "head plumber" working on "all areas of plumbing and heating." Petitioner further explained that during his time at the Riverdale Country School, he worked as the "in-house plumber" working in "all areas of plumbing" including, inter alia, "all the boilers and heating systems" and "[a]ll water and waste piping."

On January 19, 2007, the DOB notified petitioner that he had failed to demonstrate that he had been "actively and legally engaged in the plumbing trade" since the expiration of his license. The DOB directed petitioner to submit a list of the licensed master plumbers under whom he had worked along with their license numbers.

On February 28, 2007, petitioner sent a letter to DOB clarifying his work experience. The letter stated that, while he was working for Sheraton, he performed "maintenance to all plumbing systems as well as preventative work" and "[w]hen [he] uncovered plumbing work that required a filing with the [DOB], it was contracted out by Sheraton to licensed plumbing companies." The letter continued that, when he worked for Riverdale Country School, he oversaw maintenance and repair of the plumbing systems. He further asserted that his responsibilities included "identifying that work which required a filing with the [DOB] and notifying management to retain a licensed plumbing contractor to perform said work."

On April 13, 2007, the DOB notified petitioner that, according to the Administrative Code, an applicant for a master plumber's license must demonstrate "retained proficiency in the trade." The DOB explained that an applicant cannot obtain the experience unlawfully by performing plumbing work while unsupervised by a licensee. The DOB, referring to petitioner's February 28, 2007 correspondence, then asked the petitioner to provide proof that he contracted out jobs requiring a license.

On June 27, 2007, after petitioner failed to come forward with this information, DOB notified petitioner that his application for reinstatement of his master plumber's license had been denied. In the letter, the DOB explained that it was: "satisfied that [petitioner] performed consulting work in the trade through Turner Construction and that this experience since 2005 demonstrates retained proficiency in the trade as required by Section 26-150(d) of the [Administrative] Code. However, the record is devoid of evidence that the remaining work [petitioner] performed since the lapse of his license was legal work. [Petitioner] failed to provide such evidence prior to his February 28th submission and that letter represented a departure from his previous statements in that it suggested that the work that [petitioner] performed did not require supervision by a licensee." The letter concluded that, given the failure to clarify or address the legality of some of the work performed following the lapse of his license, petitioner's application was denied.

Petitioner then commenced the instant article 78 proceeding. The Supreme Court dismissed the petition since petitioner did not show that DOB's refusal to reinstate his license was arbitrary and capricious.

On appeal, petitioner argues that the DOB arbitrarily and capriciously denied his application since he submitted sufficient proof of retained proficiency in the design and installation of plumbing systems. Petitioner asserts that the DOB had no legal basis for the denial of his application, since the DOB had not identified a single allegation that petitioner had performed illegal work. The DOB maintains that its decision to deny petitioner's application was rational, since petitioner himself provided descriptions of performing work after the expiration of his master plumber's license, which included tasks that required such a license or supervision by a licensed master plumber.

It is well settled that the standard for judicial review of an administrative determination pursuant to CPLR article 78 is limited to inquiry into whether the agency acted arbitrarily or capriciously (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 Town of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). Once it has been determined that an agency's conclusion has a sound basis in reason, ...

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