Opinion

Azim v. Sewell

  • 2024 NY Slip Op 33547(U)
Court
New York Supreme Court, New York County
Filed
Oct 7, 2024
Status
Unpublished
Author
Kathleen Waterman-Marshall
Cited by
0 cases
Authority
More cited than 30.8%

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

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

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.

------------------------------------------------------------------- --------------X

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withdrawn (NYSCEF Doc.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

154330/2023 AZIM, AHASANUL vs. SEWELL, KEECHANT ET AL Page 1 of4

Motion No. 001

1 of 4

[* 1]

INDEX NO. 154330/2023

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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Motion No. 001

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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.

154330/2023 AZIM, AHASANUL vs. SEWELL, KEECHANT ET AL Page 3 of 4

Motion No. 001

3 of 4

[* 3]

INDEX NO. 154330/2023

NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/07/2024

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

154330/2023 AZIM, AHASANUL vs. SEWELL, KEECHANT ET AL Page4 of 4

Motion No. 001

4 of 4

[* 4]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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