new york police department declares steve rombom unfit to hold firearms license

7/27/2019 NEW YORK POLICE DEPARTMENT DECLARES STEVE ROMBOM UNFIT TO HOLD FIREARMS LICENSE

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SUPREME COURT OFTHE STATE OF NEW YORK

COUNTY OF NEW YORK-_„__„._„. -.—_____ ___•_>__» „______ — . _ , ______.*. .___ "V"

In the Matter of the Application of

STEVEN P. ROMBOM, Index No. 114616/08

Petitioner,

For a Judgment Pursuant to Article 78 of the Civil Practice

Law and Rules.

-against-

RAYMOND W _ KELLY, as Police Commissioner of the

City of New York,

Respondent.

RESPONDENT'S MEMORANDUM OFLAW

Preliminary Statement

Respondent, Raymond W. Kelly, as Police Commissioner of the City of New

York, submits this memorandum of law in opposition to petitioner's application for an order

pursuant to Article 78 of the Civil Practice Law and Rules ("CPLR") annulling the New York

Police Department's ("NYPD") decision to terminate petitioner's premises-residence handgun

license andiM^

The NYPD's decision to revoke petitioner's firearm license and permit was

rational and supported by substantial evidence. The City has a substantial and legitimate interest

in regulating the possession of firearms. The courts have upheld this interest by recognizing

licensing officers' broad discretion in awarding and revoking firearm licenses and permits. The

NYPD's License Division ("License Division") revoked petitioner's premises-residence handgun

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license an d rifle/shotgun permit because he did not satisfy the requirements to possess such

firearms. First, petitioner demonstrated that he did not have the necessary good moral character.

Petitioner submitted false information an d deceived the License Division fo r seven years.

Second, petitioner has a prior revoked license. Third, petitioner failed to prove that he primarily

resided in New York City. Accordingly, the Court should uphold the License Division's

decision and dismiss the petition.

STATUTORY FRAMEWORK

The relevant statutory provisions are set forth in the NYPD's Verified Answer,

and the NYPD respectfully refers the Court to H 1 f 37-57 of the Verified Answer.

STATEMENTOF THERELEVANTFACTS

The factual background is set forth in the NYPD's Verified Answer, and the

NYPD respectfully refers the Court to H it 58-83 of the Verified Answer.

ARGUMENT

POINT!

f T H ETO

THE APPELLATE DIVISION FOR

SUBSTANTIAL EVIDENCE REVIEW. _The CPLR allows for the review of administrative hearings to assess "whether a

determination made as a result of a hearing held, and at which evidence was taken, pursuant* to

direction of law is, on the entire record, supported by substantial evidence." CPLR § 7804(4).

Where a trial court concludes that the case presented requires a substantial evidence review, the

court must transfer the proceeding to the Appellate Division. See Mason v. Dep't of Bldgs-, 759



N.Y.S.'2d 470, 472 (1st Dep't 2003). "CPLR 7804(g) authorizes the court in which the Article

78 proceeding is commenced to decide any issues which would terminate the case if no issue of

substantial evidence is raised. Otherwise,, thesection requires the court to transfer the case to the

Appellate Division for disposition.'5 See Al Turi Landfill v. N.Y. State Dep't of EnvtL

Conservation. 98 N.Y. 2d 758. 760 (2002),

Here, a substantial evidence review is required because petitioner appeals a final

agency determination that was rendered after an administrative hearing at which evidence was

taken, as directed by law. Accordingly, the Court should transfer this proceeding to the

Appellate Division, First Department.

POINT II

THE NYPD'S DECISION TO REVOKE

PETITIONER'S FIREARM LICENSE AND

PERMIT WAS BASED ON SUBSTANTIAL

EVIDENCE AND IT WAS REASONABLE

AND NOT ARBITRARY, CAPRICIOUS, OR

AN ABUSE OF DISCRETION.

The decision by the NYPD's License Division to revoke petitioner's premises-

residence handgun license and rifle/shotgun permit was supported by substantial evidence and

not arbitrary or capricious. It is uncontested that petitioner provided false information an d

deceived the License Division for many years. Moreover, in order to possess a handgun license,

a licensee must primarily reside in New York City, and a licensee cannot have prior revoked

licenses. Petitioner did not prove he primarily resided in the City, and his prior license was

revoked. Because the record establishes that petitioner does not have the moral character to

possess firearms and does no t satisfy the requirements for a handgun license, the Court should

uphold the License Division's revocation.

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A. Applicable Standard of Review

Pursuant to Administrative Code Section 10-131 and Penal Law Section 400.00

the Police Commissioner has full authority to grant or deny firearm permits. In exercising this

power, the Police Commissioner is vested with broad discretion. See Perlov v. Kelly. 21 A.D.3d

270 (1st Dep't 2005). See also. Orgel v. DiFiore. 303 A.D.2d 758 (2sd Dep't 2003); Dorsev v.

Teresi, 26 A.D.3d 635 (3rd Dep't 2006). Judicial review of an agency's exercise of discretion is

limited in scope.

Section 7803 of the CPLR provides in pertinent part:

The only questions that may be raised in a

proceeding under this article are:

3. whether a determination was made in violation

of lawful procedure, was affected by an error of law

or was arbitrary and capricious or an abuse of

discretion, including abuse of discretion as to the

measure or mode of penalty or discipline imposed;

or .

4. whether a determination made as a result of a

hearing held, and at which evidence was taken,pursuant to direction by law is, on the entire record,

supported by substantial evidence.

Substantial evidence means t&a^

reasonable inferences that can be drawn from the record and must have a rational basis in the

law. "Rationality is what is reviewed under both the substantial evidence rule and the arbitrary

and capricious standard." See Pell v. Board of Educ. 34 N.Y.2d 222, 231 (1974). A court may

overturn an administrative action only if the record reveals no rational basis for it. See id. at 230;

Purdv v. Kriesberg. 47 N.Y.2d 354, 358 (1979). The Court of Appeals has defined substantial

evidence as more than "bare surmise, conjecture, speculation or rumor" and "less than a

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preponderance of the evidence" and has stated that it consists of "such relevant proof as a

reasonable mind may accept as adequate to support a conclusion or ultimate fact." See 300

Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 180 (1978). See also.

Consolidated Edison v. State Div. of Human Rights. 77 N.Y.2d 411, 417 (1991); Allen v.

Dowling, 214 AD.2d 446 (1st Dep't. 1995). If the reviewing court finds the determination is

"supported by facts or reasonable inference that can be drawn from the record and has a rational

basis in the law, it must be confirmed." See American Telephone &Telegraph Co. v. State Tax

Comm'n, 61 N.Y.2d 393, 400 (1984).

The reviewing court does not examine the facts de novo to reach an independent

determination. See Marsh v. Hanley, 50 A.D.2d 687 (3rd Dep't. 1975). The reviewing court

"may not substitute its own judgment of the evidence for that of the administrative agency, but

should review the whole record to determine whether there exists a rational basis to support the

findings upon which the agency's determination is predicated." See Purdy, 47 N.Y.2d at 358. If

the acts of the administrative agency find support in the record, its determination is conclusive

even if the court would have reached a contrary result. See Sullivan Co. Harness Racing Assn.

v. Glasses 30 RY.2d 269, 278 (1972). Unless the reviewing court finds that the agency acted in

excess of its jurisdiction, in violation of a lawful procedure, arbitrarily, or in abuse of its

discretion t no alternative but to confirm the agency's decision. SeePell, 34 N.Y.2d

at 231.

Furthermore, "[i]t is well-settled that the construction given statutes and

regulations by the agency responsible for their administration, if not irrational or unreasonable,

should be upheld." See Howard v. Wvman, 28 N.Y.2d 434, 438 (1971). See also, Bernstein v.

Tola, 43 N.Y.2d 437, 448 (1977); Albano v. Kirbv, 36 N.Y,2d 526, 532 (1975). While statutory

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construction is the function of the courts, "where the question is one of specific application of a

broad statutory term in a proceeding in which the agency administering the statute must

determine it initially, the reviewing court's function is limited/' See Board v. Hearst

Publications, 322 LLS, 1117 131 (1944). The administrative determination is to be accepted by

the courts "if it has 'warrant in the record' and a reasonable basis in law." See Lower Manhattan

Loft Tenants v. New York City Loft Bd, 1Q4 A.D,2d 223, 224 (1st Dep't 1984).

As stated in Tommy & Tina, Inc. v. Department of Consumer Affairs, 95 AJX2d

724 (1stDep't 1983), affd, 62 N.Y.2d 671 (1984):

[AJn administrative agency's construction and

interpretation of its own regulations and of the

statute under which it functions is entitled to the

greatest weight, (Matter of Herzog v. Joy, 74

AJX2d 372, 375.) Absent an arbitraryor capricious

regulation or interpretation of said regulations/

courts should defer to the agency.

A court may no t substitute its judgment for that of the agency, and its role is

limited to a review of whether a rational basis exists to support the agency's determination. See

Rudin ManagementCo. v. New York State Div. of Hous. & Community Renewal, 215 A.D.2d

'243 (1st Dep't 1995).

B. The License Division's Decision Satisfies the Standard of Review

The revocation of petitioner's firearm license and permit was not arbitrary,

capricious, or an abuse of discretion. The Division reached its decision after an investigation,

and the decision is rationally related to the record, which demonstrates petitioner does not satisfy

the requirements to possess firearms.

To possess a handgun or a rifle/shotgun, the licensee/permittee must first be of

good moral character. See 38 RCNY § 5-02(a) and 10 NYC Admin. Code § 303(a)(2). Second,

there must be no good cause to deny the license or permit. See 38 RCNY § 5~02(h) and 10 NYC

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Admin. Code § 303(a)(9), Third, with handgun licenses, the licensee's primary residency must

be in New York City, and the licensee cannot have any prior revoked licenses. See 38 RCNY §

5-02(g). The License Division may revoke a holder's permit or license at any time for failing to

satisfy any one of these requirements. See38 RCNY § 5-21 - 5-22 and 10 NYC Admin, Code §

303(g).

Petitioner does not have the good moral character required to possess a firearm

license or permit. The License Division has broad discretion to determine who is fit to possess a

firearm. See Penal Law 400.00(1). See also, Brescia v. McGuire. 509 F. Supp. 243, 246-47

(S.D.N.Y, 1981) ("New York State's strong public policy is to restrict the possession of

handguns by imposing mandatory penal sanctions . . . and authorizing broad discretion in

licensing and revocation procedures.") (internal citations omitted); Lipton v. Ward, 116 A.D.2d

474 (1st Dep't 1986); Matter of St. Oharra v. Coluccj 67 A.D.2d 1104 (4th Dep't 1979); Harris

v. Codd. 57 A.D.2d 778, 779 (1st Dep^t 1977) ("[T]he welfare and safety of the general public is

a factor of great weight in issuance of a pistol permit."), afFd, 44 N.Y.2d 978 (1978); Greenbcrg

v.Bratton. N.Y.LJ., Jan. 30, 1996, at 25 (Sup. Ct.

RY.Co.).

In this case, it is documented and uncontested that petitioner conspired against

and deceived the License Division for many years. When petitioner sought to renew his business

carry handgun license in 1997, petitioner submitted a letter from a friend that stated i^titionSf

leased office space from him. See Exhibit L. In 2005, a routine field investigation revealed that

the office space was just a mail drop. See id As a result, the License Division revoked

petitioner's business carry handgun license. See id. Based on the deceit petitioner exhibited

with his business carry handgun license, H.O. Shields rationally concluded that petitioner lacked

the adequate moral character to possess a premises-residence handgun license and a rifle/shotgun



permit. See Exhibit T. Good moral character is a substantial requirement for possessing a

firearm and petitioner's deceit undermined petitioner's character. See Lipton v. Ward, 116

AJD.2d 474 (1st Dep't 1988). See also, Pelose v. Ctv Ct of Westchester Cty., 53 AJD.2d 645

(2nd Dep't 1976),

Petitioner's argument that he was prejudiced because he did not have an

opportunity to address the 2005 revocation is without merit. See Verified Petition, at H 32. The

revocation of petitioner's business carry handgun license should have resulted in the immediate

revocation of all of petitioner's firearm licenses and permits. See 38 RCNY § 5-02(d). Most

likely, because of a clerical error, the License Division did not revoke petitioner's premises-

residence handgun license and rifle/shotgun permit See Exhibit T. This was an error that the

License Division was entitled to correct and properly corrected. Caruso v. Ward, 143 Misc.2d 5

(N.Y.Sup.Ct. 1989), affd 160 AJX2d 540 (1st Dep't 1990). Moreover, the facts surrounding the

2005 revocation and petitioner's deceit are not in dispute, and they are supported bysubstantial

evidence. Therefore, the legal conclusions that H.CX Shields derived from the 2005 revocation

did not prejudice petitioner. Most importantly, petitioner requested a hearing in 2005 and had

the opportunity to defend his actions. After the Division revoked his business carry handgun

license, petitioner chose not to appeal. See Exhibit L. Consequently, petitioner cannot now seek

toplace in question the License DivisioH^^QO^decisfenx ;* •

In addition to not satisfying the good moral character requirement to possess

firearms, petitioner does not satisfy the requirements to possess a handgun. In order to posses a

handgun license, a licensee cannot have a prior revoked license and the licensee's domicile must

be in the county in which the licensee applied to possess a handgun. See Mahoney v. Lewis, 199

AD.2d 734 (3rd Dep't 1993). First, the record establishes that petitioner's business carry



handgun license was revoked in 2005. See Exhibit L. Second, petitioner failed to prove his

domicile was in New York City. In an administrative hearing, the burden of proof is on the

licensee. See 45.NYC Charter § 1046(cX2): Zolzer v. NYS Comptroller, 196 A.D.2d 934, 601

(3rd Dep't 1993).

There is no evidence from a neutral third-party that petitioner primarily resides in

New York City. When asked for identification, petitioner gave the License Division a Texas, not

a New York State, driver's license. See Exhibit A. By law, an out of state person who moves to

New York State must apply for a New York State driver's license within thirty days and

surrender his or her out of state license. See Exhibit Q. Petitioner has had a Texas driver's

license since 1984, and New York State's DMV has no record of petitioner ever applying for a

New York State driver's license. See Exhibits A and R. The DMV only has a record of

Petitioner applying for a Non-Driver identification card a few months before trying to retrieve

his firearms. See Exhibit Q. There are two noteworthy facts about this ID. First, petitioner

waited until 2007 to acquire it, which undermines his allegation that he has primarily resided in

New York City fo r over forty years. Se e Verified Petition, at I F 20. Second, the address on the

card is not petitioner's alleged residence but a P.O. box. See id.

Seeking proof that petitioner's primarily resided in New York City, Investigator

ferdwn researctied^wtietli^r peffi^ner wais fe tereS to:;vote in th& City. %Investigator Mown

discovered that petitioner was not registered to vote in the City or in Texas, See Exhibit R.

Investigator Brown also asked petitioner to produce bills that could confirm he

resided at the alleged address. Petitioner was unable to produce either an electric or gas bill

Petitioner claimed that he did not pay for gas or electric. See Exhibit A. When asked to produce

a lease, petitioner conveniently stated that he also did not have one. See id. Petitioner did



produce New York State and City tax records. However, these records also list a P.O. box as his

address and not petitioner's alleged residence. See Exhibit U,

Petitioner argues that the testimony of his building's super and a letter from the

building's owner prove his alleged domicile. See Verified Petition, at 11 16. The credibility of

witnesses that testify in an administrative hearing is the sole province of the hearing officer. See

Remmers v « DeBuono. 241 AJD.2d 587, 588 (3rd Dep't 1997). In reviewing the hearing officer's

decision, a court must defer to the officer's assessment of the evidence and the credibility of

witnesses. See Sewcil v. New York, 182 A.D.2d 469,473 (1st Dep'l 1992).

Here, H.O. Shields found that both the super's testimony and the letter from the

building owner were not credible. Regarding the super, ELO. Shields found that the super was

less than forthcoming with information about petitioner, gave conflicting answers, and expressed

a clear bias. The following conversation, which took place during the administrative hearing,

demonstrates the super's reluctance to cooperate with the License Division's investigation.

ATTORNEY: Basically do you remember what

they [Police Officer Levine and her partner] asked?

MR. MINKOWICZ: They ask me, they ask me if I

see him often.

ATTORNEY: And what was your answer?

ATTORNEY: Okay, And what, what did you tell

them?

MR. MINKOWICZ: Ah I tell them that I see him,

that I see him, not so often, it is not so often everyday. I didn't know what to answer, basically....

HEARING OFFICER: Why don't you answer the

question right now, how often do you see Mr.

Rombom?

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MR. MINKOWICZ; Ah, I see him, it's a difficult

question because I, sometimes I see him like everyday, .

HEARING OFFICER: So how often do you see Mr.

Rombom? It's not a difficult question.

MR. MINKOWICZ: I mean this month, or two

months ago?

HEARING OFFICER: How often do you see Mr.

Rombom?

MR. MINKOWICZ:^ Depends which month I said,

or which day. Sometimes I see him two, three times

a day, sometimes I see him once every other week.

See Exhibit C,at 30/9-31/2.1

In addition to showing that the super was less than forthcoming, the testimony

contradicts what the super actually told Police Officer Levine. During the field visit, the super

told Police Officer Levine that the last time he saw petitioner was a few weeks ago and that

petitioner was often away. See Exhibit P. As for the super's bias, it was highlighted when the

petitioner's attorney asked the super why he had told the police he could not talk about the

building's tenants.

MR. MINKOWICZ: Answer the question. Ah7 I

said I'm not authorized to, to do it after the question

was if he lives here legal or^somethiDg like tiis^

, . $ome;^M^t& , to say ti^

number and the address to the office where we have

all files about all tenants which are in the building.

ATTORNEY: Why did you say that?

MR, MINKOWICZ: Why?

ATTORNEY: Yeah.

1Citations to the hearing's transcript are formatted aspage number followed by line number.

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MR, MINKOWICZ: Urn, Mr. Romboin said like it

was during the time when I am building a few times

I had visits from I believe FBI and when we spoke

with Mr. Rombom he said listen, don't say if you

don't have to to anybody anything about me

because Fm working, I'm doing these special thingsand I don't want anybody to know about and you

know, just, just say you don't know or saying

whatever he said to say, you don't have to, don't

say anything about me if you don't have to.

See Exhibit Cat31/20 - 32/11.

Based the super's contradictory answers and bias, H.Q* Shields did not find

credible the super's eventual estimate that petitioner was present 60% of the year. See Exhibit T.

Further undermining the super's estimate is his admission that he does not socialize with

petitioner andonly goes into petitioner's apartment twice a year. See Exhibit C, at 34/6 - 34/12.

H.CX Shields also had a sound basis for finding the letter from the building owner

no t credible. In 2005, the License Division revoked petitioner's business carry handgun license

because petitioner conspired with a landlord and submitted a letter containing false information.

Here, petitioner is once again resting on a letter submitted by a landlord, and there is no

documentation supporting this letter other than a biased witness. See Exhibit J. As a result, H.O.

Shields rationally found the letter not credible. Moreover, the letter only states that petitioner is

a tenant of the subject premises and that he does not have a lease. Tenancy alon0 is not sufficient

to prove a person's domicile. See Mahoney v. Lewis. 199 A.D,2d 734 (3rd Dep't 1993).

The arbitrary and capricious standard only requires that a rational basis support

the License Division's determination. To possess a firearm, a licensee or permittee must have

. good moral character. In addition, a handgun licensee must primarily reside in New York City,

and the licensee cannot have any revoked licenses. The record establishes that petitioner does

not meet any of the requirements. Therefore, contrary to petitioner's assertion, there is not one

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but three grounds for revoking petitioner's premises-residence handgun license and rifle/shotgun

permit. See Verified Petition, at f 15. Accordingly, the License Division's decision was rational

and supportedby substantial evidence.

Petitioner's argument that both H.O. Shields and Investigator Brown admitted to

petitioner having a New York domicile is without merit. See Verified Petition, at H I T 20 and 22.

Petitioner's reference to paragraph 17 of H.CX Shields's decision takes a statement by the hearing

officer out of context In the first sentence of paragraph 17, H.CX Shields states, "[h]is [referring

to petitioner] primary residence for the past 24 years has been at [the subject premises]." See

Exhibit T. This sentence is a restatement of petitioner's testimony and not a conclusion reached

by H.O. Shields. The paragraph immediately prior to this sentence begins with "[t]he licensee

testified...." See id. The sentence immediately following this alleged admission states,

u[a]ccording to him [referring to petitioner]...." See id. When taken out of context, the first

sentence of paragraph 17 is indeed misleading. However, when read in context, it becomes

evident that the sentence is a restatement of petitioner's testimony and not an independent

conclusion reached by H.O. Shields.

Similarly, when Investigator Brown's statement is closely analyzed, it does no t

amount to an admission about petitioner's domicile. During the administetive hearing,

petitioner's attorney asked Investigator Bro\vn several questions. One question was Whether

Police Officer Levine had confirmed that petitioner was a tenant or resident of the subject

premises. Investigator Brown responded, u[c]orrect" See Exhibit C, at 15-18 — 15-20. First it is

important to note that Investigator Brown only confirmed that petitioner was a tenant or a

resident of the subject premises. The underlying issue is not whether petitioner is a tenant or

resident of the subject premises but whether the subject premises qualify as petitioner's domicile.



Second, petitioner's attorney misrepresented Police Officer Levine's findings. Police Officer

Levine's report does not conclude that petitioner was a tenant or resident of the subjectpremises.

See Exhibit P. The report only recounts Police Officer Levine's interaction with the super and

does not make any factual conclusions. See id. Therefore, the alleged admissions thatpetitioner

references do not advance or prove that petitioner's domicile is in New York City.

Lastly, Petitioner's argument that H.O. Shields $ decision should be reversed

because the laws and rules do not clearly define what constitutes a "good cause" for revocation is

equally without merit. See Verified Petition, at 11 34. The Penal Law, the New York City

Administrative Code, and the Rules of the City of New York provide that the License Division

may deny an applicant's firearm license or permit for good cause. See Penal Law 400.00; 38

RCNY § 5-02(a); 10 NYC Admin. Code § 303(a). The Division's authority to revoke a firearm

license or permit for good cause, a fourth and separate ground for revocation in this case, has

been widely upheld and confirmed. See Perlov v. Kelly. 21 A.D.3d 270 (1st Dep't 2005). See

also, Qrgel v. DiFiore. 303 A.D.2d 758 (2sd Dep't 2003); Dorsev v. Teresi, 26 AJX3d 635 (3rd

Dep't 2006). Petitioner's flagrant violations, as previously discussed, provide ample good cause

for terminatinghis firearm license and permit.

POINT III

''oON STATUTORY VIOLATIONS AND DID

NOT SELECTIVELY ENFORCE ITS POLICY.

Petitioner's allegations that the terms and conditions of his license and permit

were selectively enforced have no basis. See Verified Petition, at 11 34. The License Division

based the revocation of petitioner's premises-residence handgun license and rifle/shotgun permit

on well-recognized grounds, not suspect classifications. The regulations governing handguns

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an d rifles/shotguns make it clear that the possessor of such firearms is responsible fo r knowing

the rules and regulations that govern han dg un s and rifles/shotguns. See 38 RCNY §§ 3-03 and

5-33. The regula tions also ma ke it clear that the License Division may revoke a license or perm it

at any time if the licensee or permittee violates any of the rales and regulations. See 38 RCNY

§§ 5-21 and 5-22 and 10 NYC Admin, Code § 10-303(g).

Here, petitioner does not possess the necessary good moral character to possess a

firearm an d does not satisfy the requirements to possess a handgun. Petitioner's lack of moral

character is supported by seven years of deceit, durin g which time he misrepresented the

existence of his business office. See Exhibit L. Rega rding the handgun requirements, petitioner

ha d the burden of proving that his domicile was in New York City and that he did not have any

prior revoked licenses. See 38 RCNY § 5-01. A burden that he failed to meet. See Exhibit T.

Therefore, the License Division revoked petitioner's license and permit because he was in

violation of three separate, well-established requirem en ts.

To prove an allegation of selective enforcement, a party must demonstrate there

wa s clear and intentional discrimination against him or her. "The Equal Protection Clause

requires that the government treat all similarly situated people alike." Se e Harien Assocs. v.

Village of Mmeola. 273 F.3d 494, 499 (2d Cir. 2001) (citing City of Gleburne v. Gleburne

fc This principle protects against the selective-enforcement

of laws applied "with an evil eye and an unequal hand, so as practically to make unjust and

illegal discriminations between persons in similar circumstances _ _ _ _ _ " See Yick W o v. Hopkins,

118 U.S. 356, 373-74 (1886). "The unlawful administration by state officers of a state statute

fair on its face, resulting in its unequa l application to those who a re entitled to be treated alike, is

not a den ial of equal protection unless there is shown to be present in it an element of intentional

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or purposeful discrimination ... a discriminatory purpose is not presumed; there must be a

showing of clear and intentional discrimination." See Snowden v. Hughes. 321 U.S. 1, 8 (1944)

(internal citations and quotations omitted). Petitioner does not allege in his petition that there

was intentional discrimination.

Moreover, petitioner failed to allege that respondent's purported selective

enforcement was motivated by a constitutionally impermissible standard such as race or religion.

The New York Court of Appeals has explained,

[tjo invoke the [equal protection] right successfully,

however, both the "unequal hand" and the "evil

eye" requirements must be proven - to wit, there

must be not only a showing that the law was not

applied to others similarly situated bu t also that th eselective application of the law was deliberately

based upon an impermissible standard such as race,

religion or some other arbitrary classification.

See 303 West 42nd Street Corp. v. Klein. 46 N.Y.2d 686, 693 (1979).

As an administrative agency, the License Division is vested with broad discretion

in interpreting its rules. See Perlov v. Kelly. 21. A.D-3d 270 (1st Dep't 2005). See also, Orgel v.

DiFiore, 303 A.D.2d 758 (2sd Dep't 2003); Dorsev v. Teresi 26 A.D.Bd 635 (3rd Dep't 2006).

Given the public safety implications of firearms, the License Division has a substantial and

legjtiinate ii ^ acceptable character possess such weapons.

See'MaJionev v: tewk 199 A^ d 73^ Hxxi Dep3t 1 93). See alsov District of Columbia v.

Heller. 128 S. Ct. 2783, 2809 (U.S. 2008). By deceiving the License Division for many years

and not proving his New York City domiciliary, petitioner undermined the Division's substantial

and legitimate interest. Accordingly, the Court should deny petitioner's selective enforcement

claim.

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POINT IV

PETITIONER IS NOT ENTITLED TO

D I S C O V E R Y IN THIS ARTICLE 78P R O C E E D I N G :

Petitioner is not entitled to discovery in this Article 78 proceeding, and his request

fo r disclosure should be denied. See Verified Petition, at I F 34 .

Under CPLR Section 408, a party seeking discovery in a Article 78 must request

permission f r om the court. In addition, the party must show that the documents sought are

material and necessary. See General Elec. Co. v. Macejka, 117 A.D.2d 896 (3rd Dep't 1986). If

the discovery sought is not necessary to resolve a relevant factual issue, discovery is not

appropriate. See In re Shore. 109 A.D.2d 842 (2d Dep't 1985). See also, Amot-Ogden

Memo r ial Hosp. v. Blue Cross of Central New York. 122 Misc.2d 639 (Sup.Ct. Chemung Co.

1984) (discovery was refused in an Article 78 proceeding because there were no disputed issues

o f fact). "(Tjt is a well-established rule that the nature and purpose of summary proceedings are

such that disclosure should rarely be granted[.j" Pamela Equities Corp. v. Louis Frev Co.. 120

Misc 2d 281, 281 (N.Y:Civ.Ct 1983),

Because there are no factual issues in this case, discovery is not necessary.

Petitioner's discovery requests are in connection to his selective enforcement claim and "good

cause" ai^iime& See Verified :Petition, at^34. Petitioner's selective enfO T cement c i ?

"good cause" argument both fail and are not relevant because the record establishes that

petitioner does not satisfy three well-recognized requirements to possess a handgun and a

rifle/shotgun. Petitioner does not have the adequate moral character. He does not satisfy the

residency requirement, and he has a prior revocation. The blatant and documented deceit

petitioner exhibited rules out any issue of fact concerning the revocation and need for discovery.



For these reasons, petitioner's request for discovery in this Article 78 proceeding

should be denied,

CONCLUSION

The NYPD's decision to revoke petitioner's premises-residence han dg un license

and rifle/shotgun permit was based on substantial evidence, and it was reasonable and rational.

Accordingly, the petition should be denied in all respects,

Dated: New York, New YorkJanuary 12, 2009

MICHAEL A. CARDOZO

Corporation Counsel of theCity of New York

Attorney fo r Respondent100 Church Street, Roo m 5-177New York, New York 10007

(212) 788-8683

William H. VidalAssistant Corporation Counsel

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new york police department declares steve rombom unfit to hold firearms license

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