For Petitioner Jerold E. Levine Esq.
For Respondent Jacqueline Hui, Assistant Corporation Counsel Corporation Counsel of the City of New York
Lucy Billings, J.
Petitioner moves to vacate the prior order dated January 10, 2011, denying her petition to reverse respondent's denial of a handgun license because she failed to disclose an arrest for a charges that eventually were dismissed: information the license application specifically requests. She bases her motion on C.P.L.R. § 5015(a)(3), because respondent failed to disclose to the court that the circumstances of the dismissal triggered New York Criminal Procedure Law (C.P.L.) § 160.60, under which the arrest and prosecution are considered a nullity. See Travelers Ins. Co. v. Rogers, 84 A.D.3d 469 (1st Dep't 2011); Zagranichnay v. Zagranichnay, 68 A.D.3d 1103, 1104 (2d Dep't 2009); Thakur v. Thakur, 49 A.D.3d 861, 862 (2d Dep't 2008).
Petitioner alternatively may invoke C.P.L.R. § 5015(a)(2), based on her Certificate of Disposition of the dismissed charges, which she did not present previously. American Comm. for Weizmann Inst. of Science v. Dunn, 10 N.Y.3d 82, 95-96 (2008); Atienza v. MBBCO II, LLC, 75 A.D.3d 424 (1st Dep't 2010); Ramos v. City of New York, 61 A.D.3d 51, 54 (1st Dep't 2009). See C.P.L.R. § 2221(e)(2); Sirico v. F.G.G. Prods., Inc., 71 A.D.3d 429, 433-34 (1st Dep't 2010). Respondent conceded that the charges were dismissed, so petitioner, who previously was unrepresented, did not realize that the Certificate of Disposition would include any other relevant information. See C.P.L.R. § 2221(e)(3); Atienza v. MBBCO II, LLC, 75 A.D.3d at 425; Sirico v. F.G.G. Prods., Inc., 71 A.D.3d at 433-34.
The Certificate of Disposition reveals, however, that the charges were dismissed upon the Bronx County District Attorney's motion, to which C.P.L. § 160.60 applies. Since respondent, in denying petitioner the license, knew of petitioner's arrest and the charges against her, petitioner contends that respondent surely knew the circumstances of the dismissal, triggering § 160.60's nullification provision, yet failed to reveal this fact and thus its legal ramifications to the court.
Whether or not respondent's nondisclosure amounts to misrepresentation or other misconduct sufficient to vacate the dismissal of this proceeding, C.P.L. R. § 5015(a)(3); see Travelers Ins. Co. v. Rogers, 84 A.D.3d 469; Vogelgesang v. Vogelgesang, 71 A.D.3d 1131, 1132 (2d Dep't 2010); Sieger v. Sieger, 51 A.D.3d 1004, 1006 (2d Dep't 2008); Thakur v. Thakur, 49 A.D.3d at 862, petitioner's offer of this more specific evidence in any event bears on the court's prior determination, C.P.L.R. §§ 2221(e)(2), 5015(a)(2); Atienza v. MBBCO II, LLC, 75 A.D.3d at 425; Sirico v. F.G.G. Prods., Inc., 71 A.D.3d at 433, 435; Ramos v. City of New York, 61 A.D.3d at 54, and, albeit delayed, has neither exceeded any definitive time constraint, nor hampered respondent's defense of the proceeding. C.P.L.R. §§ 2221(e), 5015(a)(2); Sirico v. F.G.G. Prods., Inc., 71 A.D.3d at 433; Ramos v. City of New York, 61 A.D.3d at 54-55. Respondent has been provided ample opportunity to respond to petitioner's motion and the Certificate of Disposition presented. As respondent concedes, this evidence is more than a "mere allegation" or "specious claim, " American Comm. for Weizmann Inst. of Science v. Dunn, 10 N.Y.3d at 96; it is uncontroverted. In light of the Certificate of Disposition and the consequent application of C.P.L.R. § 160.60, petitioner maintains that respondent's denial of the handgun license was based on an error of law and unsupported by any evidence that petitioner had failed to make a required disclosure. C.P.L.R. § 7803(3) and (4).
II. THE RESULT DICTATED BY C.P.L. § 160.60
Criminal Procedure Law § 160.60 provides that upon termination of the criminal action against petitioner in her favor:
(1) Her arrest and prosecution were considered a nullity.
(2) She was restored to her status before the arrest and prosecution.
(3) Neither the arrest nor the prosecution would operate to disqualify her from any occupation.
(4) She was not required to divulge information regarding her arrest or prosecution, except where a statute specifically requires.
New York Penal Law (P.L.) § 400.00 confers on respondent the authority to issue handgun licenses. ...