Reingold v. Koch

• Decision Date: 25 June 1985
• Citation: 111 A.D.2d 688,490 N.Y.S.2d 508
• Parties: In re Application of Sanford REINGOLD, Petitioner-Respondent, v. Edward I. KOCH, etc., et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 508

490 N.Y.S.2d 508

111 A.D.2d 688

In re Application of Sanford REINGOLD, Petitioner-Respondent, v. Edward I. KOCH, etc., et al., Respondents-Appellants.

Supreme Court, Appellate Division,

First Department.

June 25, 1985.

R.W. Resnick, New York City, for petitioner-respondent.

F. Leoussis, New York City, for respondents-appellants.

Before KUPFERMAN, J.P., and ASCH, FEIN and ROSENBERGER, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered February 21, 1984, which granted the petition for annulment of a determination of the Personnel Department of the City of New York, reversed, on the law, the determination is confirmed, and the petition is dismissed, without costs.

In this Article 78 proceeding petitioner challenges the denial to him by respondent, Personnel Director, of a license as a master plumber. Special Term granted the petition and directed the issuance of a license. We disagree, and reverse, for reasons set forth below.

Respondent Personnel Director has authority to determine the qualifications of persons applying for licenses where the issuing agency delegates such authority to him, as the Buildings Department has done herein. See 1 N.Y.C.Admin.Code Sec. 819. See also Secs. 813(6), 817. Chapter 26 of the Administrative Code provides that such a license shall be issued to applicants who meet certain criteria. To be eligible an applicant must pass both written and practical examinations and must submit satisfactory proof establishing seven (7) years of experience in plumbing systems design and/or installation. 3A N.Y.C.Admin.Code Secs. B26-2.4(a); B26-1.2, B26-1.3. Petitioner passed the examinations. However, in December, 1979, respondent notified petitioner that his proof of experience had been determined insufficient under a previously invalidated "earnings test." Weiss v. Beame, 51 A.D.2d 712, 380 N.Y.S.2d 834 (1st Dept, 1976) (Mem) aff'd on opinion below, App. No. 1743. Petitioner commenced an Article 78 proceeding which the court granted to the extent of directing respondents to conduct an evidentiary hearing to ascertain whether petitioner had the requisite years of experience.

In May, 1982 a hearing was held, at which petitioner was represented by counsel. Petitioner proferred the testimony of seven witnesses; two of whom were master plumbers. The evidence showed that petitioner worked for a licensed plumber from 1971 until 1972, and in 1973-1978 was a self-employed, unlicensed plumber. The great majority of his work involved buildings located in Soho, in which loft spaces were illegally converted into residential ones. Petitioner could neither obtain work permits, nor the lawful supervision of master plumbers, for these illegal conversions. Yet, once such conversions were legalized in 1981, master plumbers could and did "sign-off" on the plumbing work done for purposes of residents obtaining certificates of occupancy. 3A N.Y.C.Admin.Code Sec. B26-1.8, Chapter 349, Laws of 1982.

The Administrative Law Judge submitted a report and a recommendation to the Personnel Director. Over petitioner's objection, the Administrative Law Judge accepted the Department of Personnel's interpretation of "experience in design and/or installation of plumbing systems" under 3A N.Y.C.Admin.Code Sec. B26-2.4(a) as requiring that the applicant show that a master plumber oversaw or directly supervised plumbing design or installation in conformity with 3A N.Y.C.Admin.Code Sec. B26-2.0. The latter statute provides in pertinent part that "[I]t shall be unlawful to install or alter plumbing or plumbing systems, or gas piping, in or in connection with any building in the city on and after the effective date of this title, unless such work is ... under the direct supervision of a person licensed as a master plumber." He noted that a majority of petitioner's experience was obtained in violation of both the direct supervision and work permit requirements under Sections B26-2.0 and C26-109.1 of the Code. He concluded that petitioner had not demonstrated seven years of directly supervised experience.

The Personnel Director adopted the findings of the Administrative Law Judge's report, to the extent that petitioner had only demonstrated three years of directly supervised experience, and determined to deny petitioner's application. It is Special Term's decision on the proceeding challenging that denial which is here on appeal.

Special Term granted the petition on the ground that there was substantial evidence of seven years frequent and regularly supervised experience. It also held that respondents abused their discretion in refusing to credit petitioner with the experien he had gained in violation of the Code's requirement for work permits.

Special Term misapprehended the basis for the administrative determination. Respondent clearly evaluated the sufficiency of petitioner's proof solely with respect to the direct supervision criterion. We conclude that there was a rational basis for the determination to refuse credit for unsupervised work under respondent's interpretation of N.Y.C.Admin.Code Sec. B26-2.4(a). It is beyond cavil that the construction given to statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld. Matter of Howard v. Wyman, 28...