Ramirez v. Dep't of Citywide Admin. Servs.

• Decision Date: 07 February 2014
• Docket Number: Index No. 103720/2011
• Citation: 2014 NY Slip Op 30496
• Parties: In the Matter of the Application of GERARDO RAMIREZ, Petitioner For a Judgment under and pursuant to Article 78 of the CPLR v. DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, NEW YORK CITY DEPARTMENT OF BUILDINGS, and CITY OF NEW YORK, Respondents
• Court: New York Supreme Court

2014 NY Slip Op 30496

In the Matter of the Application of GERARDO RAMIREZ, Petitioner
For a Judgment under and pursuant to Article 78 of the CPLR
v.
DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES,
NEW YORK CITY DEPARTMENT OF BUILDINGS, and CITY OF NEW YORK, Respondents

Index No. 103720/2011

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

FILED: March 5, 2014
DATED: February 7, 2014

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

I. BACKGROUND

In this proceeding pursuant to C.P.L.R. Article 78, petitioner moves to reargue his petition challenging respondent New York City Department of Buildings' denial of his application for a Master Plumber license on the ground that the determination is arbitrary, C.P.L.R. §§ 2221(d), 7803(3), a challenge that the court dismissed in an order dated December 21, 2012. C.P.L.R. § 7806. Respondent Department of Buildings (DOB) based its denial on petitioner's insufficient practical experience under the New York City Administrative Code provisions governing the license when petitioner originally applied for the license, requiring seven years of experience in designing and installing plumbing systems. N.Y.C. Admin. Code §§ 26-141, 26-142, 26-146(b) (effective through June 30, 2008). After oral argument, for the

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reasons explained below, the court denies petitioner's motion for reargument. C.P.L.R. § 2221(d)(2).

Petitioner bears the burden to demonstrate that he satisfies the statutory and regulatory requirements for the license he seeks. 55 R.C.N.Y. § 11-02(d)(1); Reingold v. Koch, 111 A.D.2d 688, 690 (1st Dep't), aff'd, 66 N.Y.2d 994 (1985); Martin v. City of New York, 103 A.D.3d 412 (1st Dep't 2013); Chilson v. Hein, 94 A.D.3d 517, 518 (1st Dep't 2012). See San Filippo v. New York City Dept. of Bldgs., 68 A.D.3d 421 (1st Dep't 2009). The required seven years of experience in designing and installing plumbing systems in the United States to support a Master Plumber license application must be performed under the supervision of a licensed master plumber. N.Y.C. Admin. Code § 26-141(c) (effective through June 30, 2008).

Although no Administrative Code or regulatory provision requires an applicant to show the seven years of experience through permits, DOB used permits simply as a measure because all such work experience, at least in New York City, must have been performed under a permit. N.Y.C. Admin. Code § 26-142(a)(1)(a); Licata v. Department of Citywide Admin. Servs., 105 A.D.3d 520 (1st Dep't 2013). Conversely, no such work experience was allowed without a permit. N.Y.C. Admin. Code § 27-147.

Petitioner nonetheless contends that DOB's denial of his application for a Master Plumber license was arbitrary because DOB based its denial on his supervising licensees' insufficient number of permits during his employment under their supervision,

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without a statutory or regulatory basis. He was particularly disadvantaged because he claims qualifying work experience outside New York City, where DOB does not issue permits, and in New York City but before DOB instituted its recordkeeping of permits.

II. PETITIONER'S PROOF OF HIS EXPERIENCE

Petitioner relied on affidavits of his former employers to substantiate his plumbing work experience. One of them, John Curley, attested that he employed petitioner full time from May 17, 2004, to February 7, 2008, but specifically denied supervising petitioner and explained that he worked directly for customers. Nevertheless, even assuming Curley's supervision, DOB was not obligated, and the court was not entitled, to consider those 44-45 months of experience, because petitioner failed to comply with DOB's request to provide evidence of where Curley was licensed, since he was not licensed in New York City. At a hearing before DOB July 15, 2009, petitioner not only acknowledged that Curley rarely supervised petitioner, but further failed to demonstrate that Curley was licensed and acknowledged that Curley's other employee who supervised petitioner was not licensed.

Another employer, Lucas Gentile, attested that "during the period of time in which Mr. Ramirez was employed and supervised by me . . . , a great deal of my firm's work was plumbing work performed for city agencies, notably HPD." V. Pet. Ex. F, at 5. Petitioner also testified at the hearing July 15, 2009, that he

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worked for the New York City Department of Housing...