Merring v. Webber

• Decision Date: 31 March 2015
• Docket Number: No. 24601/2013.,24601/2013.
• Citation: 16 N.Y.S.3d 792 (Table)
• Parties: In the Matter of the Petition of Donald E. MERRING, Petitioner, for a Judgment Pursuant to Civil Practice Law and Rules Article 78 Reviewing and Annulling A May 13, 2013 Final Agency Determination of the Office of the Police commissioner, Suffolk County Police Department, Affirming A March 6, 2013 Disapproval of Pistol License Application No.C–093608 by the Pistol Licensing Bureau, Suffolk County Police Department, v. Edward Webber in his official capacity as Suffolk County Police Commissioner; Brian P. Cassidy, Sgt. 1106/1000, in his official capacity (Office of the Police Commissioner ); Cpt. W. Read, C.O., in his official capacity (Pistol Licensing Bureau); and Lt. Kimberly McGreavey, X.O., in her official capacity (Pistol Licensing Bureau)., Respondents.
• Court: New York Supreme Court

16 N.Y.S.3d 792 (Table)

In the Matter of the Petition of Donald E. MERRING, Petitioner, for a Judgment Pursuant to Civil Practice Law and Rules Article 78 Reviewing and Annulling A May 13, 2013 Final Agency Determination of the Office of the Police commissioner, Suffolk County Police Department, Affirming A March 6, 2013 Disapproval of Pistol License Application No.C–093608 by the Pistol Licensing Bureau, Suffolk County Police Department
v.
Edward Webber in his official capacity as Suffolk County Police Commissioner; Brian P. Cassidy, Sgt. 1106/1000, in his official capacity (Office of the Police Commissioner ); Cpt. W. Read, C.O., in his official capacity (Pistol Licensing Bureau); and Lt. Kimberly McGreavey, X.O., in her official capacity (Pistol Licensing Bureau)., Respondents.

No. 24601/2013.

Supreme Court, Suffolk County, New York.

March 31, 2015.

John S. Campo, Esq., Uniondale, NY, for Petitioner.

Dennis M. Brown, Suffolk County Attorney, by Megan O'Donnell, Esq ., Hauppauge, NY, for Respondents.

Opinion

JAMES HUDSON, J.

Upon the following papers numbered 1–36 read on this Article 78; Notice of Motion/ Order to Show Cause and supporting papers 1–13; Notice of Cross Motion and supporting papers 0; Notice of Motion to Dismiss and supporting papers 14–34; Answering Affidavits and supporting papers 35–36; Other 0; (and after hearing counsel in support and opposed to the motion) it is,

ORDERED, that respondents' motion to dismiss this proceeding brought pursuant to CPLR Art. 78 is granted; and it is further

ORDERED, that the petition is dismissed as respondents have provided a defense founded upon documentary evidence, pursuant to CPLR § 3211(a)(1), sufficient to defeat petitioner's claim of an arbitrary and capricious decision; and it is further

ORDERED, that respondents shall serve a copy of this decision with Notice of Entry upon petitioner and shall file same with the Clerk of the Court within twenty days of receipt of this Order.

Petitioner brings this proceeding pursuant to Article 78 of the Civil Practice Law and Rules. Petitioner had made application to respondents for a permit to possess a pistol in Suffolk County. The application was denied and petitioner appealed administratively. At the appeal, the Office of the Police Commissioner made a final determination affirming the denial. Petitioner's application for a pistol license was disapproved and all administrative remedies have been exhausted. Petitioner now brings this action in the form of the special proceeding seeking mandamus from this Court annulling the determination of the Office of the Police Commissioner and directing that the pistol permit be issued. Respondents made a motion to dismiss the proceeding in lieu of an answer pursuant to CPLR §§ 7803 & 3211(a)(1)(5) and (7). Petitioner replies in the form of an affirmation in opposition to the motion.

In May of 2012, petitioner made application to respondents by written affidavit for a license to possess a pistol in Suffolk County. In June of 2012, the application was assigned to a police officer within the pistol bureau to investigate. The officer reviewed petitioner's application and initially identified four questions which required further explanation by petitioner. Those questions pertained to treatment for alcoholism or drug abuse, treatment for mental illness, use of marijuana and the receipt of traffic tickets. Based upon petitioner's positive responses to these questions, the officer required petitioner to appear for an interview in person. The interview, as explained in the investigating officer's affidavit, was designed to provide her with an opportunity to observe petitioner in person and to give petitioner an opportunity to further explain his answers. At the interview, the officer discovered that petitioner had neglected to disclose more information, which was relevant to the application and cast aspersions upon petitioner's credibility. Furthermore, it was revealed that there had been a history of discord in the family household into which petitioner wished to introduce the pistol and that on at least one occasion the police had been called to the...