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Holihan v. Limandri

Supreme Court, New York County

June 26, 2013

EDWARD HOLIHAN, Petitioner,
v.
ROBERT D. LIMANDRI, Commissioner of the New York City Department of the New York City Buildings; NEW YORK CITY DEPARTMENT OF BUILDINGS; AISHA NORFLEET, Direction of Licensing Unit of the New York City Department of Buildings; Respondents. Index No. 103986/2012

Unpublished Opinion

PETER H. MOULTON, J.S.C.

Petitioner worked for respondent New York City Department of Buildings ("Buildings") from 2004 until his resignation in 2008. Petitioner seeks to vacate respondents' determinations, dated February 29, 2012 and June 29, .2012, which denied him a Private Elevator Agency Inspector ("PEAI") license. Petitioner alternatively seeks a determination that respondents violated Corrections Law Article 23 and/or the New York State or New York City Human Rights laws.

Respondents-maintain that petitioner was properly denied a license because 1 RCNY 11-01 (b) (2) (ii) requires that an applicant possess "good moral character" which petitioner lacked. Petitioner lacked such character, respondents concluded, because in 2008 he plead guilty to Disorderly Conduct (a violation) and paid restitution, in connection with a criminal proceeding involving his submission of false time sheets to his employer.

Arguments

Petitioner maintains that it was improper for respondents to base their decisions on his conviction. Petitioner further notes that subsequent to his guilty plea, he worked without complaints for CBA Consultants, as well as with J. Martin Associates under that company's Director's License. Petitioner additionally maintains that the minor criminal offense had no bearing on his fitness to perform the duties of a PAEI. Petitioner also contends that he was not a risk to the public and cites to a Daily News story to support this assertion. The story noted that Building's reinspection of 100 elevators on which he worked revealed no problems. Petitioner also cites to letters of recommendation to demonstrate his rehabilitation.

Respondents counter that petitioner was properly denied a license, because in response to a question on the license application, he disclosed that he was convicted on September 25, 2008 of Disorderly Conduct. Moreover, in response to a request for further explanation, petitioner explained that:

On September 25, 20081 surrended [sic] myself to the Dept of Investigations for overlapping Hours for the work that I was performing on two jobs. I pleaded guilty to disorderly conduct a violation and paid 3544 dollars restitution and a 250 dollar find and I was released the same day. My case was expungled [sic] after 1 year of the date of conviction.

Respondents note that they carefully considered the factors under Article 23-A Corrections Law §753 (1) and concluded in relevant part:

A PAEI license authorizes an individual to inspect new or altered elevators and their devices to determine compliance with applicable laws, rules and standards. These licensees are responsible for preparing forms relating to elevator inspections, maintenance logs and elevator certificates ... As a City employee, your willful submission of false time sheets in violation of city laws, and Department regulations, reflects poorly on your character. These illegal acts also bear a direct relationship to your fitness and ability to perform the duties of a licensed PAE1. The obligations and responsibilities of a PAE1 licensee are similar to that of a Department inspector, in that there is an ethical obligation to report unsafe conditions accurately and to truthfully complete all submissions to the Department. Your arrest and subsequent conviction demonstrates a propensity to mislead the Department and the likelihood of your willingness to risk the safety of the public for your own convenience and profit. Additionally, this conviction occurred less than four years ago ... the reference letters, written on your behalf, did not overcome the Department's evaluation of your criminal conduct in relation to the duties of a Private Elevator Inspector.

Petitioner argues for the first time in reply (for which the court permitted a sur-reply), that respondents violated the Executive Law § 296 (16) because they based their decisions on petitioner's offense which was "sealed" pursuant to Criminal Procedure Law § 160.55. In connection with sealed violations under CPL § 160.55, an agency is prohibited from making criminal inquiries "whether in any form of application or otherwise." CPL § 160.55 also provides that "no person shall be shall be required to divulge information pertaining to any arrest or criminal accusation of such individual not then pending." Petitioner also maintains that four other named individuals, who were in the "same situation in that they were convicted of similar crimes" were permitted to keep their licenses. Petitioner does not describe the facts of those cases.

In their sur-reply, respondents maintain that they based their decisions on information which petitioner voluntarily provided about the circumstances of his arrest and conviction. Moreover, respondents argue that the court is confined to the agency record which contains no information regarding the "unsubstantiated" assertions of the four individuals. They further argue that the fact that petitioner continued to work is not relevant to respondents' prior determinations, nor is it relevant that he worked under another person's license, because that person supervises petitioner and vouches for his character.

Discussion

The standard of review of an agency decision denying the privilege of a license is whether the decision is arbitrary and capricious (seeArrocha v. Board of Educ. of City of N.Y., 93 N.Y.2d 361 [1999] [it was not arbitrary or capricious for the agency to deny a teaching license based on the conclusion that the applicant posed a risk to the safety of the student population and school employees, where the ...


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