Opinion
Index No. 519845/2022
04-29-2024
In the Matter of Application of Christopher Dickson, Hoist Machine Operator 9424B, PETITIONER, For Judgment pursuant to Article 78, CPLR, v. The New York City Office of Administrative Trials and Hearings, Department of Buildings, Erich Ulrich, Commissioner, Building Inspector Michael Linton, in his individual and official capacity, Building Department Assistant Commissioner in charge of Enforcement, Ari Wax, Esq., in his individual and official capacity, and Buildings Department Senior Licensing Attorney, John Lee, in his individual and official capacity and AnnMarie Walters, in her capacity as Deputy Director, Licensing and Exams, RESPONDENTS.
For Petitioner Christopher Dickson: Gil v. Perez, Esq. For Respondents NYC OATH et al.: Andrea Heather Brustein of NYC Law Dept.
Unpublished Opinion
For Petitioner Christopher Dickson: Gil v. Perez, Esq.
For Respondents NYC OATH et al.: Andrea Heather Brustein of NYC Law Dept.
Hon. Patria Frias-Colón, J.S.C.
Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:
NYSCEF Doc #s 1-11; 14-20; 35-38 by Pet.
NYSCEF Doc #s 21-33 by Resp.'s
Upon the foregoing cited papers and after oral argument on April 19, 2023, pursuant to CPLR Article 78, Petitioner's Article 78 petition is being transferred to the Appellate Division, 2nd Department.
BACKGROUND
This action arises from an August 16, 2021 denial of Petitioners license renewal application as a hoisting machine operator. On August 19, 2021, Petitioner brought an Article 78 proceeding seeking mandamus to compel a final determination for his license renewal, which was denied as moot given that a final determination was issued on March 15, 2022. Petitioner now brings the instant Article 78 petition averring that Respondent Department of Building's ("DOB") decision to deny his license renewal was arbitrary and capricious, was not based on rational evidence. Petitioner seeks an Order to renew his license retroactively, among other requested relief.
Id. at pg.'s 1-4.
NYSCEF Doc. # 8 at pg. 358.
NYSCEF Doc. # 32.
NYSCEF Doc. # 1.
Respondents oppose, arguing that the DOB's denial of Petitioner's application for a renewal of his license was reasonable and rational, supported by the administrative record, and that Petitioner is not entitled to mandamus relief. Additionally, they content OATH's final determination sustaining summons number 39041358Z was reasonable and rational and supported by substantial evidence, and that, to the extent Petitioner raises questions of substantial evidence, this matter should be transferred to the Appellate Division, Second Department for a substantial evidence review.
NYSCEF Doc. # 33.
DISCUSSION
Petitioner's Article 78 petition requests an Order: (1) for mandamus to compel the New York City Department of Buildings Licensing Unit to renew/reinstate the instant license retroactively to August 19, 2021; (2) dismissing violation # 39041358Z against Petitioner entirely; (3) ordering the Department to produce its record and respond to the instant petition; (4) compelling the Office of Administrative Trials and Hearings to modify its procedures to provide for discovery of all relevant documents maintained by summons issuing agency on discovery demand; (5) finding that the issuing officer Linton intentionally mislead the Tribunal with his testimony at the hearing before the ECB with regard to the Lift Directors Log he photographed and submitted; (6) directing review of the participation of Licensing Attorney John Lee, Esq. and Ari Wax, Esq. in the administration of Petitioners renewal, and the proceedings before this court, as it relates to their obligations of candor before the New York State Bar; and (7) requiring a report, by a Licensed Qualified Professional, investigating the instant proceeding and these documents and all reports making recommendations to improve the departments procedures regarding crane violations and licensing.
NYSCEF Doc. # 1 at pg.'s 11-13.
Pursuant to CPLR 7804(g), this petition is respectfully transferred to the Appellate Division, Second Department, for disposition. When a petition filed in the Supreme Court seeks relief pursuant to CPLR Article 78 and "raises a question of whether an administrative determination is supported by substantial evidence, the proceeding should be transferred from the Supreme Court" to the Appellate Division to address the issue. Doran v. Town of Babylon, 219 A.D.3d 832 (2d Dept. 2023) (quoting Matter of Sullivan v. County of Rockland, 121 A.D.3d 700 [2d Dept. 2014]). The instant proceeding seeks a determination of whether Respondents' determination to find Petitioner in violation of Administrative Code § 28-405.1, as the result of a hearing in which evidence was taken pursuant to direction of law, was supported by substantial evidence. See CPLR 7803(4). Petitioner is directed to serve a copy of this Order with Notice of Entry upon the Kings County Clerk, who is directed to transfer the file to the Appellate Division.
This constitutes the Decision and Order of the Court.