Brennanv.Green

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial DepartmentDec 21, 2018
90 N.Y.S.3d 419 (N.Y. App. Div. 2018)
90 N.Y.S.3d 419167 A.D.3d 14822018 N.Y. Slip Op. 8786

1072 TP 17–02208

12-21-2018

In the Matter of Dennis BRENNAN, Petitioner, v. Michael C. GREEN, in His Official Capacity as Executive Deputy Commissioner of Division of Criminal Justice Services, and New York State Division of Criminal Justice Services, Respondents.

SANDERS & SANDERS, CHEEKTOWAGA (HARVEY PHILIP SANDERS OF COUNSEL), FOR PETITIONER. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (PATRICK A. WOODS OF COUNSEL), FOR RESPONDENTS.


SANDERS & SANDERS, CHEEKTOWAGA (HARVEY PHILIP SANDERS OF COUNSEL), FOR PETITIONER.

BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (PATRICK A. WOODS OF COUNSEL), FOR RESPONDENTS.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, to annul the determination of respondent New York State Division of Criminal Justice Services (Division) revoking his General Topics Instructor Certification and Firearms Instructor Certification (collectively, instructor certifications).

Initially, we note that, inasmuch as this proceeding does not involve a substantial evidence issue, Supreme Court erred in transferring the proceeding to this Court (see Matter of Scherz v . New York State Dept. of Health, 93 A.D.3d 1302, 1303, 941 N.Y.S.2d 411 [4th Dept. 2012] ; see also CPLR 7803[4] ; 7804[g] ). "A substantial evidence issue arises only where a quasi-judicial hearing has been held and evidence [has been] taken pursuant to law" ( Scherz, 93 A.D.3d at 1303, 941 N.Y.S.2d 411 [internal quotation marks omitted] ). Here, no hearing was held, nor was one required by law or statute. Although the proceeding was erroneously transferred, we will address the merits of petitioner's contentions.

"Our review of this administrative determination is limited to whether the determination ‘was affected by an error of law or was arbitrary and capricious or an abuse of discretion’ " ( Matter of Erie County Sheriff's Police Benevolent Assn., Inc. v. Howard, 159 A.D.3d 1561, 1562, 74 N.Y.S.3d 432 [4th Dept. 2018], quoting CPLR 7803[3] ). A determination is arbitrary and capricious "when it is taken without sound basis in reason or regard to the facts" ( Matter of Thompson v. Jefferson County Sheriff John P. Burns, 118 A.D.3d 1276, 1277, 987 N.Y.S.2d 732 [4th Dept. 2014] ). "An agency's determination is entitled to great deference ... and, [i]f the [reviewing] court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result" ( id. [internal quotation marks and citations omitted] ).

Petitioner does not contend that the determination is affected by an error of law and, viewing the record as a whole, we conclude that the Division's determination to revoke petitioner's instructor certifications is not arbitrary and capricious or an abuse of discretion. The record supports the Division's determination that each of the six bases for revocation specified in the administrative complaint was substantiated.

We have reviewed petitioner's remaining contentions and conclude that none warrants annulling the determination.