Kelly v. Klein

• Court: New York Supreme Court Appellate Division
• Citation: 96 A.D.3d 846,946 N.Y.S.2d 218,2012 N.Y. Slip Op. 04750
• Parties: In the Matter of Patrick W. KELLY, petitioner, v. Carol S. KLEIN, etc., respondent.
• Decision Date: 13 June 2012

96 A.D.3d 846
946 N.Y.S.2d 218
2012 N.Y. Slip Op. 04750

In the Matter of Patrick W. KELLY, petitioner,
v.
Carol S. KLEIN, etc., respondent.

Supreme Court, Appellate Division, Second Department, New York.

June 13, 2012.

[946 N.Y.S.2d 219]

Tilem & Campbell, P.C., White Plains, N.Y. (John Campbell of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Anthony J. Tomari of counsel), for respondent.

ANITA R. FLORIO, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, and JEFFREY A. COHEN, JJ.

[96 A.D.3d 846]Proceeding pursuant to CPLR article 78 to review a determination of the respondent Carol S. Klein, a Judge of the Family [96 A.D.3d 847]Court and an Acting Justice of the Supreme Court, Orange County, dated September 1, 2011, which, after a hearing, denied the petitioner's application for a pistol license.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, without costs or disbursements.

As an initial matter, this proceeding was properly commenced as an original proceeding before this Court since the respondent named in this proceeding is an Acting Justice of the Supreme Court, as well as a Judge of the Family Court, and, therefore, this Court has subject matter jurisdiction to entertain this proceeding ( seeCPLR 7804[b], 506[b][1] ).

The standard for reviewing the denial of an application for a pistol license is whether the determination of the licensing officer was arbitrary and capricious ( seeCPLR 7803[3]; Matter of Velez v. DiBella, 77 A.D.3d 670, 909 N.Y.S.2d 83).

Penal Law § 400.00(1), which sets forth the eligibility requirements for obtaining a pistol license, requires, inter alia, that the applicant be at least 21 years of age, of good moral character with no prior convictions of a felony or serious offense, and a person “concerning whom no good cause exists for the denial of the license” (Penal Law § 400.00[1][g]; see Matter of Velez v. DiBella, 77 A.D.3d at 670, 909 N.Y.S.2d 83). “A pistol licensing officer has broad discretion in ruling on permit applications and may deny an application for any good cause” (Matter of Orgel v. DiFiore, 303 A.D.2d 758, 758, 756 N.Y.S.2d 870;seePenal Law § 400.00[1][g]; Matter of Velez v. DiBella, 77 A.D.3d at 670, 909 N.Y.S.2d 83;Matter of Gonzalez v. Lawrence, 36 A.D.3d 807, 808, 831 N.Y.S.2d 180).

Contrary to the petitioner's contention, the licensing officer's determination that good cause existed to deny the application...