The opinion
Azim v Sewell
2024 NY Slip Op 33547(U)
October 7, 2024
Supreme Court, New York County
Docket Number: Index No. 154330/2023
Judge: Kathleen Waterman-Marshall
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
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publication.
INDEX NO. 154330/2023
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/07/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. KATHLEEN WATERMAN-MARSHALL PART 09M
Justice
----------------------------------------------------------------- ----------------X INDEX NO. 154330/2023
AHASANUL AZIM,
MOTION DATE 05/12/2023
Petitioner,
MOTION SEQ. NO. 001
- V -
KEECHANT SEWELL, CITY OF NEW YORK DECISION + ORDER ON
MOTION
Respondent.
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The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 12, 13, 14, 15, 16,
17, 18, 19,20,21,22,23,24,25,26,27,28,29,30, 31, 32, 33, 34, 35, 36, 37,38,39,40,41,42,43,44,
45,46,47,48,49
were read on this motion to/for ARTICLE 78 (BODY OR OFFICER)
In this Article 78 proceeding, Petitioner, Ahasanul Azim, alleges that Respondents,
Keechant Sewell, Police Commissioner of the City of New York, and the City of New York
(collectively the "Respondents") wrongly denied his application for a Special Patrolman
appointment. Petitioner seeks judgment reversing the Respondents' denial of his application for
Special Patrolman and granting his application. Alternatively, Petitioner seeks to have the matter
remanded to Respondents for further consideration. Petitioner seeks the costs, disbursements,
and reasonable attorney's fees for this proceeding.
Respondents cross-moved to dismiss the petition; however, the cross-motion was
withdrawn (NYSCEF Doc. No. 35). Respondents, by way of answer, oppose the petition and
allege that the Court lacks subject matter jurisdiction to review Petitioner's claims because the
claims are moot. Respondents also oppose the petition on the merits, alleging that their
determination was neither arbitrary nor capricious and must be upheld by the Court.
Factual Background
The relevant facts underlying this Article 78 proceeding are generally undisputed. On
March 28, 2022, the Taxi and Limousine Commission ("TLC") hired Petitioner as a
Probationary Inspector. As a probtationary employee with TLC, Petitioner's continued
employment required that he be appointed a Special Patrolman, a Peace Officer position, within
a certain timeframe. On July 21, 2022, Petitioner filed an application for a Special Patrolman
appointment. On December 12, 2022, the application was denied by Notice of Disapproval. The
Notice of Disapproval cited Petitioner's failure to comply with Respondents' investigation and
failure to disclose information as the bases for denial. Shortly thereafter, Petitioner filed an
administrative appeal. On February 14, 2023, the administrative appeal was denied by Notice of
Disapproval After Appeal (NDAA) on the grounds that Petitioner's witholding of pertinent
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NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/07/2024
information reflected poorly on his character. On May 3, 2023, Petitioner filed this Article 78
petition seeking reversal of the NDAA and granting his application for Special Patrolman.
Petitioner's Contentions
Petitioner alleges that Respondents should not have denied his application for a Special
Patrolman appointment. He does not dispute that he failed to include certain information on his
initial application; however, he contends that his failure to provide this information was due to
complicated forms with vague questions or because he had simply forgotten about old matter. He
claims that he fully complied with Respondents' investigation, "performing everything asked of
him and submitting everything requested."
Respondent's Contentions
Initially, Respondents contend that Petitioner's claims are moot because Petitioner is no
longer employed by TLC. Respondents allege that a Special Patrolman application must be
endorsed by the hiring agency in order to be processed, pursuant to 38 RCNY § 13-0l(f), which
necessarily requires the probationary employee remain employed by the agency throughout the
application's processing. As Petitioner's employment was terminated after his application was
denied, Respondents contend any future application would no longer be endorsed by the agency
and cannot be approved absent the endorsement. As such, Respondents urge that the instant
Article 78 is academic, effectively alleging that this Court cannot review their denial of
Petitioner's application.
As to the merits of the Article 78 petition, Respondents allege that their determination
was neither arbitrary nor capricious because Petitioner "lacks the character, sound judgment, and
fitness to be appointed a Special Patrolman." Respondents allege that, in accordance with 38
RCNY § 13-01, an applicant "shall be of good character" and may be disapproved by "failure to
meet character requirements as disclosed by a background investigation ... based upon a review
of the circumstances of previous arrests, employment records, mental history, reports of
misconduct." By failing to disclose the revocation of his TLC license, the disqualification of his
Police Officer application following background investigation, and the bases for both, Petitioner
lacks the requisite good character to be hired as a Special Patrolman.
Article 78 Relief
Mootness
Advisory opinions are generally prohibited; thus, if adjudication on the merits will not
result in "immediate and practical consequences to the parties," the matter is moot and a court
should not rule on the matter, subject to certain exceptions (Coleman v Daines, 19 NY3d 1087
[2012]). The instant Article 78 is not moot. While 38 RCNY § 13-0l(f) contemplates that the
applicant for Special Patrolman be "presently employed or about to be employed" by an agency,
the regulation does not, as Respondents allege, function to limit this Court's jurisdiction to
review the denial of an applicant. Respondents' contention that the instant matter is rendered
moot by Petitioner's termination would, as a practical matter, render all terminations of
employees unreviewable.
Assuming, arguendo, that Respondent's termination of Petitioner's employment rendered
his Article 78 application moot, an exception to the mootness doctrine nevertheless exists -
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chiefly, that review of Respondents' denial would otherwise typically evade court review
(Coleman v Daines, 19 NY3d at 1090; City of New Yorkv Maul, 14 NY3d 499,507 [2010]). To
find otherwise would be to countenance a procedure by which Respondents are permitted to:
deny an application for Special Patrolman, terminate the applicant's employment, and then assert
that 38 RCNY § 13-0l(f) prohibits the approval of the applicant on the basis that they are no
longer employed with the agency. Respondents' denial of the application could then never be
subject to court review. This cannot be.
Accordingly, the instant Article 78 is not rendered moot by Respondents' termination of
Petitioner's employment. Respondents' claims otherwise are denied.
Arbitrary & Capricious
The standard of review of an agency determination via an Article 78 proceeding is well
established. The Court must determine whether there is a rational basis for the agency
determination or whether the determination is arbitrary and capricious (Matter of Gilman v New
York State Div. ofHousing and Community Renewal, 99 NY2d 144 [2002]). "An action is
arbitrary and capricious when it is taken without sound basis in reason or regard to the facts"
(Peckham v. Calogero, 12 NY3d 424 [2009]; see also Matter of Pell v Board of Educ. of Union
Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d
222 [1974]). When an agency determination is supported by a rational basis, the Court must
sustain the determination, notwithstanding that the Court would reach a different result than that
of the agency (Peckham v. Calogero, 12 NY3d at 431).
Here, Respondents' denial of Petitioner's Special Patrolman application is supported by a
rational basis. As part of Petitioner's Special Patrolman application, he failed to disclose that, his
TLC license was revoked after he was found guilty in an administrative proceeding of
overcharging 177 customers. He failed to disclose both the license revocation and the
administrative proceeding findings. Petitioner also failed to disclose that he applied for
employment as a Police Officer in 2016, and after passing the exam, was disqualified from
employment as a result of the background investigation.
38 RCNY § 13-0l(e) provides that "To be eligible for appointment as a Special
Patrolman, an applicant shall be of good character ... [and] cooperate in a background
investigation by the License Division of the Police Department" and subsection (f) provides that
where an applicant fails to meet character requirements, following a background investigation,
the application may be disapproved. Thus, Respondents consideration of the circumstances of
Petitioner's TLC license revocation, which relate directly to his proposed duties as TLC
Inspector ( a Special Patrolman title), his disqualification from employment as a Police Officer,
and failure to disclose that information, was neither arbitrary nor capricious (see also Doe v
Sajir, 184 Misc2d 198,200 [NY County Sup. Ct. 2000] [Stallman, J.] [City has inherent
discretion to determine whether a Special Patrolman applicant has requisite sound judgment
given liability implications]).
Accordingly, Respondents' determination was neither arbitrary nor capricious, and the
instant Article 78 must, therefore, be denied.
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Declaratory Judgment
Although this is an Article 78 proceeding, Petitioner also seeks a judgment declaring that
Respondents acted unreasonably in denying Petitioner's application for a Special Patrolman
appointment. However, this declaratory relief was raised improperly for the first time in reply
and cannot be considered by the Court (Erdey v City ofNY, 129 AD3d 546 [1st Dept 2015]
[cannot address claims raised for first time in reply papers]). Notably, the petition does not seek
declaratory relief, thus declaratory relief has not been pled in this action.
Were the Court to reach the declaratory judgment claim, it would nevertheless deny it. A
declaratory judgment action must be dismissed "if there is already pending between the parties
another action in which all the issues can be determined" (Morgenthau v. Erlbaum, 59 NY2d 143
[1983]). Petitioner's prayer for a declaratory judgment that Respondents acted "unreasonably" is
identical to his Article 78 claims, which is the proper procedural vehicle by which to bring his
claims (Concourse Rehabilitation & Nursing Ctr., Inc. v Shah, 161 AD3d 669 [1st Dept 2018]
[declaratory judgment action converted to Article 78 as proper method to challenge government
agency determination]). The relief sought in the declaratory judgment cause of action is available
under CPLR article 78 without the necessity of a declaration (Matter ofHolistic Resources, Inc.
v Del Valle, 190 AD3d 525 [1st Dept 2021]).
Attorney's Fees
Having not prevailed on this Article 78 proceeding, petitioner is not entitled to recover
attorney's fees (see e.g. Martucci v. Hyer-Spencer, 217 AD3d 868 [2d Dept 2023]).
Accordingly, it is hereby
ORDERED that the petition is denied in its entirety; and it is further
ORDERED that the matter shall be marked disposed.
10/7/2024
DATE KATHLEEN WATERMAN-MARSHALL,
J.S.C.
~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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