Thomas v. Caban

Thomas v Caban

2025 NY Slip Op 31785(U)

May 16, 2025

Supreme Court, New York County

Docket Number: Index No. 161990/2023

Judge: Nicholas W. Moyne

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.

FILED: NEW YORK COUNTY CLERK 05/16/2025 11:18 AM INDEX NO. 161990/2023

NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 05/16/2025

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. NICHOLAS W. MOYNE PART 41M

Justice

---------------------------------------------------------------------------------X INDEX NO. 161990/2023

DEVON THOMAS,

MOTION DATE 12/11/2023

Petitioner,

MOTION SEQ. NO. 001

-v-

EDWARD A CABAN, NICOLE BERKOVICH, NEW YORK

CITY POLICE DEPARTMENT, NEW YORK CITY POLICE DECISION + ORDER ON

DEPARTMENT LICENSE DIVISION MOTION

Respondent.

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

The following e-filed documents, listed by NYSCEF document number (Motion 001) 7, 10, 19, 20, 21, 22,

23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35

were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) .

Upon the foregoing documents, it is

The petitioner, pursuant to Article 78 of the New York Civil Practice Law and Rules

(“CPLR”), is seeking an order annulling a determination by the New York City Police

Department’s (“NYPD”) License Division, that denied the petitioner’s application for a Carry

Guard handgun license. The NYPD License Division denied the petitioner’s application after its

investigation revealed the petitioner’s past criminal history and documented what the NYPD

believes is a pattern of failing to follow License Division Rules. The petitioner believes this

determination was arbitrary and capricious and contrary to law. He asks this court to annul the

determination and direct NYPD to issue him the requested license. For the reasons set froth

below, the petition is denied.

In order to ensure the safety of the general public, all firearm licensees must meet certain

requirements in order to obtain a Carry Guard handgun license, more accurately referred to as a

concealed carry license. One of the requirements is that the applicant demonstrate that he or she

is of “of good moral character.” Penal Law § 400.00(1).1 Pursuant to 38 RCNY § 5-10, the

NYPD may deny an applicant a handgun license where it is determined that an applicant lacks

good moral character, pursuant to Penal Law § 400.00(1). Title 38 RCNY § 5-10 provides a list

of factors that shall be considered in the determination of whether an applicant lacks good moral

character, including the applicant has been arrested, the applicant is subject to an order of

protection, the applicant failed to comply with Police Department rules governing possession and

1

Penal Law § 400.00(1) was amended on July 1, 2022 to define “good moral character” as having “the essential

character, temperament, and judgment necessary to be entrusted with a weapon and to use it only in a manner that

does not endanger oneself or others.” Penal Law § 400.00(1), as amended by Ch. 212, 2022 N.Y. Laws Section 1,

effective Sep. 4, 2022.

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Motion No. 001

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FILED: NEW YORK COUNTY CLERK 05/16/2025 11:18 AM INDEX NO. 161990/2023

NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 05/16/2025

use of firearms, and other information that demonstrates a lack of good moral character. See 38

RCNY §§ 5-10(a), (f), (i), (n).

Courts review the rationality or reasonableness of an agency’s determination under the

arbitrary and capricious standard. However, courts are limited to assessing whether a rational

basis exists to support an administrative determination; the court’s review ends if a rational basis

exists. (See Heintz v. Brown, 80 NY2d 998, 1001 [1992] [citing Pell v Bd. of Educ., 34 NY2d

222, 230–31 [1974]; Sullivan County Harness Racing Assn v Glasser, 30 NY2d 269, 277 [1972])

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.”

Purdy v. Kreisberg, 47 NY2d 354, 358 [1979]. In sum, “a court may not overturn an agency’s

decision merely because it would have reached a contrary conclusion.” Sullivan County, 30

N.Y.2d at 278. A rational or reasonable basis for an administrative agency determination exists

if there is evidence in the record to support its conclusion. (See Sewell v City of New York, 182

AD2d 469 [1st Dept. 1992], appeal denied, 80 NY2d 756 [1992]). 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, the court has no alternative but to confirm the agency’s

decision. (See Pell, 34 NY2d at 231)

After reviewing the record, the Court finds that the NYPD License Division’s denial of

the petitioner’s application for a carry guard handgun license was rational and reasonable and in

accordance with applicable law. The petitioner had previously been granted licenses permitting

him to carry a concealed handgun in connection with his employments a s security guard. The

License Division properly considered two incidents where the petitioner exceeded the limited

scope of his license by exposing or displaying his handgun in circumstances not related to his

employment as a security guard. Those previous licenses were revoked, and the License

Division properly considered the prior revocations when evaluating the petitioner’s fitness in

connection with the instant application. The prior revocations were upheld by a court, and the

petitioner’s attempt to relitigate them here are improper and unavailing.

The License Division’s investigation also revealed Petitioner’s history of failing to follow

License Division rules. A Carry Guard licensee must immediately report to the License Division

any improper use or safeguarding of a handgun, as well as if the licensee is arrested or becomes

subject to an order or protection. See 38 RCNY §§ 5-24(b)(2)(iv), (b)(3)(iii) and (v). Petitioner

failed to notify the License Division about the order of protection issued against him in May

2011, and failed to notify the License Division that he improperly entered a police precinct with

his firearm exposed in April 2016. After reviewing the full record, the NYPD License Division

found that Petitioner has “a history of exceeding the limitations of his Carry Guard license” and

“continues to evidence a failure to appreciate the rules and regulations surrounding the Carry

Guard license,” which is “alarming and evidences his lack of judgment.” Exh. K at 3. Further,

“[t]hese incidents span a wide range of Mr. Thomas’s life and do not appear to lessen even after

explicit notice that his conduct is inappropriate.” Id. NYPD’s decision was rational and

reasonable in light of the administrative record and Petitioner’s attitude toward and lack of

remorse concerning his past misconduct.

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Motion No. 001

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NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 05/16/2025

Finally, the petitioner’s attempts to challenge the denial of his license application on

constitutional grounds is ill-conceived and unavailing. Petitioner argues that the requirement

that license applicants demonstrate that they are of “good moral character” in order to

successfully obtain a license is inconsistent with this country’s history and tradition of firearms

regulation and runs afoul of the decision of the Supreme Court of the United States in New York

State Riffle & Pistol Assn., Inc. v Bruen, 597 US 1 [2022]. This argument has already been ruled

upon and rejected by other courts, most notably by the United States Court of Appeals for the

Second Circuit in Antonyuk v Chiumento, 89 F4th 271 [2d Cir. 2023]. The key language in

Antonyuk upholding the good moral character requirement is an astute and cogent analysis of the

rule’s conformance with the decision in Bruen and is worth quoting in full.

The [“good moral character”] requirement is not facially invalid

because it is not unconstitutional in all its applications. The CCIA's

definition of “character” is a proxy for dangerousness: whether the

applicant, if licensed to carry a firearm, is likely to pose a danger

to himself, others, or public safety. And there is widespread

consensus (notwithstanding some disputes at the margins) that

restrictions which prevent dangerous individuals from wielding

lethal weapons are part of the nation's tradition of firearm

regulation. We therefore cannot conclude that every denial on

grounds of “good moral character” as defined by New York will

violate the Second Amendment, though various avenues lie open

for as-applied challenges.

Next, we disagree with the district court's conclusion that affording

licensing officers a modicum of discretion to grant or deny a

concealed carry permit is inconsistent with the nation's tradition of

firearm regulation. For as long as licensing has been used to

regulate privately-owned firearms, issuance has been based on

discretionary judgments by local officials. Licensing that includes

discretion that is bounded by defined standards, we conclude, is

part of this nation's history and tradition of firearm regulation and

therefore in compliance with the Second Amendment.

Finally, Bruen does not forbid discretion in licensing regimes--on

the contrary, the Bruen Court specifically stated that its decision

did not imperil the validity of more than a dozen licensing schemes

that confer discretion materially identical to the CCIA. At most,

the Court indicated that the practical operation of a licensing

scheme is relevant to whether it is impermissibly discretionary. It

was therefore error to strike down New York's scheme on a facial

challenge.

Antonyuk, 89 F4th at 312.

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Motion No. 001

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FILED: NEW YORK COUNTY CLERK 05/16/2025 11:18 AM INDEX NO. 161990/2023

NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 05/16/2025

In the opinion of this Court, the above quoted decision is all that needs to be said about

this petition. The petition is dismissed. Accordingly, it is hereby

ORDERED that the petition is denied, and the proceeding is dismissed.

This constitutes the decision and order of the court.

5/16/2025

DATE NICHOLAS W. MOYNE, J.S.C.

CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

GRANTED X DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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Motion No. 001

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