Cannon v. Urlacher

• Decision Date: 15 November 1989
• Citation: 155 A.D.2d 906,547 N.Y.S.2d 495
• Parties: Matter of Leslie CANNON, Respondent-Appellant, v. Gordon F. URLACHER, as Chief of Police of the City of Rochester, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 495

547 N.Y.S.2d 495

155 A.D.2d 906

Matter of Leslie CANNON, Respondent-Appellant, v. Gordon F. URLACHER, as Chief of Police of the City of Rochester, Appellant-Respondent.

Supreme Court, Appellate Division Fourth Department.

Nov. 15, 1989.

Louis N. Kash, Corp. Counsel, by Anthony Obiajulu, Rochester, for appellant-respondent.

Davidson, Fink, Cook & Gates by Thomas Fink, Rochester, for respondent-appellant.

Before DILLON, P.J., and DENMAN, GREEN, PINE and BALIO, JJ.

MEMORANDUM:

It was error for the court to remit this matter for a new administrative hearing at which respondent's licensing records must be considered. The hearing officer properly refused to enforce the subpoena duces tecum demanding the production of respondent's licensing records because those records were not relevant to the issues to be determined at the hearing. Petitioner sought to introduce those records to support his claim of discriminatory enforcement. A claim of discriminatory enforcement of a disciplinary scheme by a licensing authority cannot be raised at an administrative hearing (see, Matter of Di Maggio v. Brown, 19 N.Y.2d 283, 291-292, 279 N.Y.S.2d 161, 225 N.E.2d 871; Matter of Feigman v. Klepak, 62 A.D.2d 816, 819, 406 N.Y.S.2d 304; Matter of Bell v. New York State Liq. Auth., 48 A.D.2d 83, 84, 367 N.Y.S.2d 875). Such claim should be submitted to a court in a CPLR article 78 proceeding (see, Matter of Bell v. New York State Liq. Auth., supra ). Additionally, there is no merit to petitioner's contention that the licensing records were admissible to support his claim that the penalty of revocation is excessive. Petitioner's claim of disproportionate penalty did not ripen until respondent imposed the penalty. Consequently, it was premature for petitioner to attempt to raise that issue at the administrative hearing.

Although an article 78 proceeding in Supreme Court is the proper vehicle for judicial review of the appropriateness of a penalty (CPLR 7803[3], petitioner has failed to establish a prima facie case of discriminatory enforcement. "A discriminatory purpose may not be presumed. There must be a showing by extrinsic evidence of 'clear and intentional discrimination' (Matter of Di Maggio v. Brown, 19 N.Y.2d 283, 290-291, 279 N.Y.S.2d 161, 225 N.E.2d 871)" (Matter of Feigman v. Klepak, supra, 62 A.D.2d at 819, 406 N.Y.S.2d 304). The petition contains only vague and conclusory statements that other taxi drivers and hack plate owners have committed...