Robles v. N.Y.C. Dep't of Citywide Admin. Servs.
| Decision Date | 20 October 2014 |
| Docket Number | 111586/2011 |
| Citation | 48 Misc.3d 888,2014 N.Y. Slip Op. 24430,10 N.Y.S.3d 805 |
| Parties | In the Matter of the Application of Louis ROBLES, Petitioner, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules v. NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES and New York City Department of Buildings, Respondents. |
| Court | New York Supreme Court |
Jerold E. Levine Esq., Valley Stream, for Petitioner.
Jacqueline Hui, Assistant Corporation Counsel, New York, for Respondents.
On July 1, 2011, respondent New York City Department of Citywide Administrative Services (DCAS) denied petitioner's application for a New York City High Pressure Boiler Operating Engineer (HPBOE) license, which respondent New York City Department of Buildings (DOB) issues. The denial was based on petitioner's lack of good moral character due to his misconduct and conflict of interest during his employment with the New York City Department of Education (DOE). In this proceeding pursuant to C.P.L.R. Article 78, petitioner seeks annulment of respondents' denial as arbitrary, an order that respondents grant his application for the license, and an award of attorney's fees and expenses. For the reasons explained below, the court grants the petition to the extent set forth and otherwise denies the petition. C.P.L.R. §§ 7803(3), 7806.
The court must uphold respondents' denial of petitioner's application for the license if the determination is rationally based and therefore not arbitrary. Chilson v. Hein, 94 A.D.3d 517, 518, 942 N.Y.S.2d 78 (1st Dep't 2012) ; Rasole v. Department of Citywide Admin. Servs., 83 A.D.3d 509, 923 N.Y.S.2d 427 (1st Dep't 2011) ; Arbuiso v. New York City Dept. of Bldgs., 64 A.D.3d 520, 522, 883 N.Y.S.2d 216 (1st Dep't 2009) ; Cardone v. City of N.Y. Dept. of Bldgs., 31 A.D.3d 253, 255, 818 N.Y.S.2d 206 (1st Dep't 2006). 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, 490 N.Y.S.2d 508 (1st Dep't), aff'd, 66 N.Y.2d 994, 499 N.Y.S.2d 395, 489 N.E.2d 1297 (1985) ; Chilson v. Hein, 94 A.D.3d at 518, 942 N.Y.S.2d 78. See San Filippo v. New York City Dept. of Bldgs., 68 A.D.3d 421, 889 N.Y.S.2d 576 (1st Dep't 2009).
The specific grounds for DCAS's denial of petitioner's application were his 2009 dismissal by DOE as a school custodian “for misconduct related to theft of school property and conflict of interest for receiving improper compensation by concealing payment for contracted work,” construction of a wall in the basement of the school where petitioner was employed. V. Pet. Ex. A. After a hearing by a City Office of Administrative Trials and Hearings (OATH) administrative law judge (ALJ), DOE's Chancellor accepted the ALJ's recommendation and terminated petitioner's employment in a decision dated November 16, 2009. The Chancellor found that petitioner's “actions involved deception and moral turpitude” and that he “displayed no remorse” and took no “responsibility for his proven misconduct.” Id. Ex. B, at 2.
Petitioner claims DCAS's denial of his application for an HPBOE license was arbitrary because DCAS renewed the licenses of persons who had engaged in more serious misconduct, more lacking in moral character. At oral argument January 8, 2014, petitioner acknowledged he was not claiming discrimination in violation of New York Correction Law § 752. Since the OATH ALJ merely noted that petitioner's misconduct amounted to petit larceny, N.Y. Penal Law § 155.25, without any evidence that petitioner was convicted of that or any other crime, Correction Law § 752 does not apply to his circumstances. N.Y. Corr. Law § 751 ; Martino v. Consolidated Edison Co. of N.Y., Inc., 105 A.D.3d 575, 965 N.Y.S.2d 86 (1st Dep't 2013). See Green v. Wells Fargo Alarm Serv., 192 A.D.2d 463, 596 N.Y.S.2d 412 (1st Dep't 1993).
New York City Administrative Code § 28–401.6 requires that:
The DOE Chancellor's determination was based on a hearing over three days detailing DOE's investigation of the charges against petitioner. This process yielded the findings that petitioner stole an unidentified liquid from DOE, using and then returning its drums, and concealed his receipt of payment for work on DOE property, which he arranged between DOE and his brother, and for which petitioner used DOE employees during their employment, thus entailing a conflict of interest. These findings in turn furnish a rational and therefore an adequate basis for DCAS's conclusion that petitioner lacked the moral character required for the license.
Respondents rest on their bases for concluding that petitioner lacked the required moral character and do not claim that he failed to provide evidence requested to support his application or failed to cooperate with the background investigation. See ACE Inspection & Testing, Inc. v. New York City Dept. of Bldgs., 118 A.D.3d 550, 987 N.Y.S.2d 154 (1st Dep't 2014) ; Godbolt v. Verizon N.Y. Inc., 115 A.D.3d 493, 494, 981 N.Y.S.2d 694 (1st Dep't 2014). Respondents retain discretion in determining whether an applicant, based on past conduct, is unfit for a license due to untrustworthiness: “a fundamental breach of the necessary trust ... between an employer and employee,” a finding by the ALJ that the DOE Chancellor adopted. V. Pet. Ex. B, at 2. See Testwell, Inc. v. New York City Dept. of Bldgs., 80 A.D.3d 266, 277, 913 N.Y.S.2d 53 (1st Dep't 2010). Like untrustworthiness, lack of remorse for misconduct, which the Chancellor further found, is a relevant consideration in determining whether to grant or deny a license and in reviewing the rational basis for that determination. Nehorayoff v. Mills, 95 N.Y.2d 671, 675, 723 N.Y.S.2d 114, 746 N.E.2d 169 (2001) ; Tolliver v. Kelly, 41 A.D.3d 156, 158, 837 N.Y.S.2d 128 (1st Dep't 2007).
Although petitioner was not charged with any criminal offense related to DOE's findings of theft and concealment of compensation for work entailing a conflict of interest, misconduct that does not result in a conviction still furnishes a rational basis for denying a license based on lack of moral character. Cambridge v. Commissioner of N.Y. City Dept. of Bldgs., 14 A.D.3d 373, 376, 788 N.Y.S.2d 84 (1st Dep't 2005) ; Sindone v. City of New York, 2 A.D.3d 125, 126, 767 N.Y.S.2d 438 (1st Dep't 2003). The fact that DOE found those grounds enough to terminate his employment as a custodian also is relevant to respondents' determination of fitness as a High Pressure Boiler Operating Engineer. See Testwell, Inc. v. New York City Dept. of Bldgs., 80 A.D.3d at 278, 913 N.Y.S.2d 53. In sum, despite the absence of a conviction, petitioner's misconduct provides respondents a rational basis for determining that petitioner lacked the moral character required for the HPBOE license. Testwell, Inc. v. New York City Dept. of Bldgs., 80 A.D.3d at 278, 913 N.Y.S.2d 53 ; Mankarios v. New York City Taxi & Limousine Commn., 49 A.D.3d 316, 318, 853 N.Y.S.2d 69 (1st Dep't 2008) ; Cambridge v. Commissioner of N.Y. City Dept. of Bldgs., 14 A.D.3d at 377, 788 N.Y.S.2d 84 ; Arif v. New York City Taxi & Limousine Commn., 3 A.D.3d 345, 346, 770 N.Y.S.2d 344 (1st Dep't 2004).
Petitioner further claims that DCAS's determination constituted disparate treatment in comparison to other applicants similarly situated to him who sought an initial or a renewed HPBOE license. Respondents maintain that petitioner's disparate treatment claim fails because petitioner is not similarly situated to the other applicants to whom he compares himself and does not identify any protected class to which he belongs as the basis for respondents' discriminatory treatment.
Because petitioner is not in a protected class, respondents may treat him differently from similarly situated license applicants if the different treatment is rationally related to a legitimate government interest. Walton v. New York State Dept. of Correctional Servs., 13 N.Y.3d 475, 492–93, 893 N.Y.S.2d 453, 921 N.E.2d 145 (2009) ; OTR Media Group, Inc. v. City of New York, 83 A.D.3d 451, 453, 920 N.Y.S.2d 337 (1st Dep't 2011) ; City Servs. v. Neiman, 77 A.D.3d 505, 507–508, 909 N.Y.S.2d 703 (1st Dep't 2010) ; Matter of Chantel Nicole R., 34 A.D.3d 99, 105, 821 N.Y.S.2d 194 (1st Dep't 2006). The license applicants to whom petitioner is compared, however, need be similar only in material or significant respects to be similarly situated to him. Rudey v. Landmarks Preserv. Commn. of City of N.Y., 182 A.D.2d 61, 63, 587 N.Y.S.2d 623 (1st Dep't 1992), aff'd, 82 N.Y.2d 832, 606 N.Y.S.2d 588, 627 N.E.2d 508 (1993). See Shah v. Wilco Sys., Inc., 27 A.D.3d 169, 177, 806 N.Y.S.2d 553 (1st Dep't 2005).
To support his disparate treatment, petitioner presented the circumstances of 28 other HPBOE license applicants who were granted a license or license renewal despite criminal charges against them resulting in convictions, loss of employment, or other penalties imposed by governmental bodies. In an order dated August 15, 2012, the court granted petitioner's motion for disclosure and ordered respondent...
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