Davis v. Clyne

• Decision Date: 28 July 1977
• Citation: 58 A.D.2d 947,397 N.Y.S.2d 186
• Parties: In the Matter of Marilyn F. DAVIS, Petitioner, v. John J. CLYNE, as Judge of the County Court of Albany County, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 186

397 N.Y.S.2d 186

58 A.D.2d 947

In the Matter of Marilyn F. DAVIS, Petitioner, v. John J. CLYNE, as Judge of the County Court of Albany County, Respondent.

Supreme Court, Appellate Division, Third Department.

July 28, 1977.

Dermot C. Reilly, Albany, for petitioner.

Robert G. Lyman, Albany County Atty., Albany, for respondent.

Before SWEENEY, J. P., and MAHONEY, MAIN, LARKIN and HERLIHY, JJ.

MEMORANDUM DECISION.

Proceeding pursuant to CPLR article 78 (brought on in this court (CPLR 506, subd. (b), par. 1)) to review a determination of respondent which denied petitioner's application for a pistol permit.

By memorandum dated February 17, 1977 we withheld decision and remitted the matter to the court below with the instruction that respondent articulate the reason for denial of petitioner's application for a pistol permit (Matter of Davis v. Clyne, 56 A.D.2d 692, 391 N.Y.S.2d 484). By letter to the Clerk of the Court, dated April 8, 1977, respondent stated, in substance, that since the petitioner was 29 years of age, had a young child at home and had given "hunting and target practice" as the purposes for which the permit was sought, the application should be denied.

It is clear that a pistol license may be denied for any good cause (Penal Law, § 400.00 subd. 1, par. (d); cf. Matter of Barton Trucking Corp. v. O'Connell, 7 N.Y.2d 299, 107 N.Y.S.2d 138, 165 N.E.2d 163), and it is equally clear that the licensing officer has a great deal of discretion in deciding whether a pistol license should be granted to a particular applicant (Matter of Hunt v. Rubin, 52 A.D.2d 955, 383 N.Y.S.2d 632; Matter of Moore v. Gallup, 267 App.Div. 64, 45 N.Y.S.2d 63, affd. 293 N.Y. 846, 59 N.E.2d 439; Matter of Sheriff v. Codd, 83 Misc.2d 625, 373 N.Y.S.2d 254; Klapper v. Codd, 78 Misc.2d 377, 356 N.Y.S.2d 431). This discretion is not, however, without limits. The determination of the licensing officer may not be arbitrary and capricious (Matter of Guida v. Dier, 84 Misc.2d 110, 375 N.Y.S.2d 826, mod. 54 A.D.2d 86, 387 N.Y.S.2d 720; Matter of Sheriff v. Codd, supra ; Klapper v. Codd, supra ; Katz v. Murphy, 71 Misc.2d 220, 335 N.Y.S.2d 844; Matter of DeTrano v. Kaufman, 66 Misc.2d 183, 320 N.Y.S.2d 141; cf. Matter of Maytum v. Nelson, 53 A.D.2d 221, 227, 385 N.Y.S.2d 654, 658).

In the instant case, petitioner has indicated that if she is granted a pistol license she will engage in practice and competitive pistol shooting sponsored by organizations affiliated with the National Rifle Association of which she is a member. This is a legitimate purpose and a license to use a pistol under such controlled and structured conditions should...