Tessler v. City of New York

• Decision Date: 06 February 2012
• Citation: 952 N.Y.S.2d 703,38 Misc.3d 215,2012 N.Y. Slip Op. 22298
• Parties: In the Matter of the Application of Akiva TESSLER, Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules v. CITY OF NEW YORK, Police Department of the City of New York, and Raymond W. Kelly, as Commissioner of the Police Department of the City of New York, Respondents.
• Court: New York Supreme Court

38 Misc.3d 215

952 N.Y.S.2d 703

2012 N.Y. Slip Op. 22298

In the Matter of the Application of Akiva TESSLER, Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules

v.CITY OF NEW YORK, Police Department of the City of New York, and Raymond W. Kelly, as Commissioner of the Police Department of the City of New York, Respondents.

Supreme Court, New York County, New York.

Feb. 6, 2012.

Akiva Tessler Esq., Staten Island, Petitioner Pro Se.

Rachel Moston, Assistant Corporation Counsel, New York, for respondents.

LUCY BILLINGS, J.

Petitioner, an attorney, seeks a judgment vacating respondents' determination February 12, 2009, that revoked his handgun license; reinstating his license; and returning his firearms to him from the New York City Police Department's License Division. C.P.L.R. § 7803(3) and (4). Petitioner also seeks a declaratory judgment that New York City Administrative Code § 10–312 and 38 Rules of the City of New York (RCNY) § 5–22(13) are unconstitutional. C.P.L.R. § 3001. Respondents move to dismiss the petition on the ground that the petition fails to state a claim. C.P.L.R. §§ 3211(a)(7), 7804(f).

I. FACTUAL ALLEGATIONS

On August 22, 2007, police officers responded to a complaint of domestic violence at petitioner's residence in Staten Island, New York. Petitioner claims his wife was “attacking” his daughter, and, when he came to his daughter's aid, his wife attacked him. V. Pet. ¶ 4. Both of petitioner's children were in the home: his daughter, 16 years old, and his son, 12 years old. As a result of the complaint, the police arrested petitioner's wife and charged her with assault in the third degree. N.Y. Penal Law § 120.00.

While inside petitioner's residence, the police officers found two guns in his closet that respondents claim were not adequately safeguarded. Both guns were in an unlocked cabinet, one of them loaded. No evidence disclosed, however, that the guns themselves were not secured with a trigger lock or other safety locking device. Nor do respondents dispute that the guns remained in place during the altercation. According to petitioner, his wife purposely had unlocked the cabinet and informed the police of the guns' whereabouts. Petitioner is the legal owner of both guns and has retained valid licenses for them since 1993. Based on what the police officers found, however, they issued petitioner an appearance ticket for the criminal offense of violating Administrative Code § 10–312, for “Failure to Properly Safeguard Weapon,” and took his weapons into their custody. V. Pet. ¶ 6; Aff. of Thomas M. Prasso Ex. E. The New York City Criminal Court dismissed this charge November 9, 2007.

Petitioner alleges that on August 23, 2007, he secured an order of protection for his children against their mother, which excluded her from their residence. On August 29, 2007, as acknowledged by respondents, he notified a civilian employee at the License Division about the incident a week earlier.

Petitioner subsequently received a notice dated September 13, 2007, from the License Division that his handgun license was suspended pending an investigation of the “domestic incident” August 22, 2007. Id. Ex. G. In particular, the notice advised him:

that your license and/or permit are suspended as a result of your domestic incident.

YOU ARE HEREBY DIRECTED TO IMMEDIATELY:

....

3. Forward a copy of the Property Clerk's Invoice showing surrender of the firearms to the License Division at the above address.

4. Forward a notarized letter to the License Division at the above address explaining the facts and circumstances surrounding your incident.

5. Telephone and speak with the investigator named below who is assigned to your case.

....

The investigator assigned to your case is Police Officer COCCODRILLI ....

POSSESSION OF AN UNLICENSED FIREARM IS A CRIME. FAILURE TO COMPLY WITH ANY OF THE ABOVE–MENTIONED DIRECTIVES MAY RESULT IN YOUR ARRESTAND/OR PERMANENT REVOCATION OF YOUR LICENSE.

Id.

According to petitioner, when he received this notice, he telephoned the License Division and informed its investigator that the police had taken his firearms and licenses, but that he was never given an invoice for his firearms. Petitioner claims the investigator then informed petitioner that he did not need to take any further action at that time and was to wait for further communication from the License Division. Petitioner does not specifically recall the investigator's identity, but claims she must have been Police Officer Coccodrilli, the name listed on the notice of September 13, 2007. The License Division, however, maintains that its records lack any indication of such a communication with petitioner after the one on August 29, 2007.

Having received no notarized letter from petitioner as directed by the September 2007 notice, the License Division mailed petitioner a “FINAL REQUEST” dated January 30, 2008, but otherwise identical to the September 2007 notice, again directing him immediately to forward a notarized letter to the License Division and to telephone Police Officer Coccodrilli. Prasso Aff. Ex. H. See V. Pet. ¶ 11. According to petitioner, on February 20, 2008, he mailed a notarized letter to the License Division setting forth the information he previously provided to the investigator via telephone. The License Division, however, maintains it never received this letter.

On January 30, 2008, the same date as the “FINAL REQUEST” suspension notice, Prasso Aff. Ex. H, Officer Coccodrilli already issued a final report recommending revocation of petitioner's license and relaying her investigative findings on which she based her recommendation:

-facts and circumstances surrounding the domestic incident

-the fact that licensee failed to comply with No. 4 & # 5 on the suspension letter

-the fact that licensee did not properly secure his firearms and that the firearms were readily available for other persons living in the home to take.

Id. Ex. I. Petitioner then received a Notice of Determination dated March 31, 2008, from the License Division's Commanding Officer, concurring with Officer Coccodrilli's findings and recommendation, and advising petitioner that the License Division had revoked his handgun license and that he was entitled to a hearingto challenge the determination. Prasso Aff. Ex. J. See V. Pet. ¶¶ 14–15.

II. THE ADMINISTRATIVE ADJUDICATION

Petitioner requested a hearing, which was held June 25, 2008. Officer Coccodrilli did not appear, as she was on an extended leave. Police Officer James Grillo testified for the License Division. He conceded his total lack of personal knowledge concerning the relevant facts.

After petitioner testified about mailing the notarized letter to the License Division February 20, 2008, but lacked a copy to produce at the hearing, the Hearing Officer kept the administrative record open to allow petitioner to present this documentary evidence demonstrating his compliance with direction # 4 of the suspension letters. On July 3, 2008, petitioner presented an original stamped certificate of mailing as his evidence that he transmitted a letter to the License Division February 20, 2008. On July 17, 2008, petitioner mailed to the License Division a copy of the letter that he testified he had mailed in February 2008.

The Hearing Officer issued a determination dated February 10, 2009, again recommending revocation of petitioner's “Premises–Residence handgun license.” Prasso Aff. Ex. O, at 7. Her report detailed the absence of any License Division record of a telephone communication between petitioner and the investigator or a notarized letter from petitioner, to comply with the suspension notices' directives, as well as petitioner's original noncompliance with requirements for safekeeping of a licensee's firearms. In this latter regard petitioner violated, at minimum, the following requirements: (1) “to keep handguns away from unauthorized persons, especially children” and (2) to leave his handguns locked when out of his immediate control. 38 RCNY § 5–22(a)(13). See Prasso Aff. Ex. O, at 3, 5; N.Y.C. Admin. Code § 10–312(a). The Hearing Officer assessed these violations in the context of the undisputed facts that petitioner had custody of his two minor children and that their mother's behavior had precipitated an active order of protection against her on behalf of petitioner and the children.

Regarding petitioner's delay in notifying the License Division about the encounter with the police at his residence, the Hearing Officer referred to petitioner's testimony that he notified the License Division as soon as possible, but that his first priority was securing the order of protection and taking care of his children. He explained that when the incident occurred he was working seven days per week, at three jobs, as a practicing attorney, an administrative law judge, and a pharmacist, and that he did telephone the License Division a week after the incident. He insisted that a police officer also telephoned shortly afterward and informed petitioner his license “would be suspended until the order of protection ... is resolved,” Prasso Aff. Ex. L, at 27, and in each telephone communication with the License Division he explained that the police had taken his license and guns and given him no invoice, so he had “nothing to surrender.” Id. at 28. He further maintained that, after receiving the second notice, dated January 30, 2008, he did mail the specified notarized letter.

Based on petitioner's testimony, the Hearing Officer found that:

Although the licensee testified that he had spoken to at least two, maybe three, individuals at the License Division, he was unable to provide the name of any of the people he spoke with or the dates. I find it surprising that an experienced lawyer and administrative law judge would not have obtained the name of any License Division employee with whom he spoke and noted the date. Despite his legal and adjudicative background,...