De Matteo v. O'Connell

• Decision Date: 21 August 1957
• Parties: Application of Louis DE MATTEO, Petitioner for an order directing the Department of Licenses of The City of New York to issue a Used Car Dealer License v. Bernard O'CONNELL, as License Commissioner of the City of New York, Thomas M. O'Neill, Deputy Commissioner of Licenses of Brooklyn and Department of Licenses of the City of New York, pursuant to Article 78, C.P.A., Respondents.
• Court: New York Supreme Court

Page 938

166 N.Y.S.2d 938

11 Misc.2d 28

Application of Louis DE MATTEO, Petitioner for an order

directing the Department of Licenses of The City

of New York to issue a Used Car Dealer License v. Bernard O'CONNELL, as License Commissioner of the City of

New York, Thomas M. O'Neill, Deputy Commissioner of Licenses

of Brooklyn and Department of Licenses of the City of New

York, pursuant to Article 78, C.P.A., Respondents.

Supreme Court, Kings County.

Aug. 21, 1957.

William Richter, New York City, for petitioner.

Peter Campbell Brown, Corp. Counsel, New York City (Joseph M. Callahan, Jr., and Daniel Z. Nelson, New York City, of counsel), for respondents.

BECKINELLA, Justice.

In this article 78 proceeding petitioner, seeks an order annulling the determination of the respondents, the Commissioner of Licenses of the City of New York, the Deputy Commissioner, and the Department of Licenses of the City of New York, in denying the petitioner's application for a second-hand dealer's license to conduct a used car lot.

The petition charges that the respondents' action in denying him such license 'was arbitrary, unreasonable, discriminatory, capricious and in violation of his legal constitutional rights.' The respondents by their answer and return herein deny the charge and interpose two separate and complete defenses, alleging in substance, that the denial of the application was a lawful, reasonable and proper means of protecting the public safety, morals and welfare and that such action was a reasonable exercise of respondents' discretion necessarily taken in the interest and preservation of the public safety, morals and welfare.

It is plainly apparent from the uncontroverted facts that close association of the petitioner with the premises herein sought to be licensed and with the persons heretofore in control thereof, the present close proximity to the former licensee thereof, coupled with the facts that the petitioner had failed to answer fully a pertinent question in his application and, while the instant application was pending, was found by the respondent, deputy commissioner, to be unlawfully using the said premises as a parking lot without a license, all contributed in influencing the commissioner to deny the application. The said premises had been licensed to a corporation under the name of its president as a used car lot from 1947 to October 24, 1955, when the license was suspended on various complaints and charges relating to missing records and other violations of law. In 1956, the brother of the corporation's president made two unsuccessful applications for a license, both as an individual and as president of another corporation. For several years prior to and at the time the instant application was filed, petitioner admittedly operated an auto and body fender shop on the premises. Petitioner's wife had been the treasurer of the formerly licensed corporation until 1953. The only other officer of the said corporation, its secretary, was convicted of grand larceny in 1956. The president thereof still conducts a parking lot on the lot adjoining the said premises with no fence or other separation between the two parcels. The petitioner admitted in his application that he had been convicted of a misdemeanor in the County Court, Kings County, fifteen years ago, but failed to mention an arrest in 1924; the matters involved larceny of an auto in the older case and receiving stolen tires in the later case. On January 8, 1957, the day following receipt of the application by the respondents, twenty-six cars were found parked on the said premises at the time under lease by the petitioner without any license therefor. By legislative mandate, 'The commissioner shall have cognizance and control of the granting, issuing, transferring, renewing, revoking, suspending and cancelling of all licenses and permits, except in the cases with respect to which and to the extent to which any of said powers are conferred upon any other person by law, but including all licenses heretofore issued by the board of aldermen.' (New York City Charter, chap. 32, § 773, subd. a.)

The Court of Appeals, in Small v. Moss, 277 N.Y. 501, 507, 14 N.E.2d 808, 810, stated: 'Whether or not an applicant has a clear legal right to a license...