# AT&T Information Systems, Inc. v. Donohue > Appellate Division of the Supreme Court of the State of New York · December 19, 1985 · 113 A.D.2d 395 URL: https://www.frixlaw.com/law-library/cases/5880008 ## Case - **Full name:** In the Matter of AT&T Information Systems, Inc. v. William J. Donohue, as Commissioner of Commerce of the State of New York - **Court:** Appellate Division of the Supreme Court of the State of New York - **Decided:** December 19, 1985 - **Citations:** 113 A.D.2d 395; 496 N.Y.S.2d 565; 1985 N.Y. App. Div. LEXIS 52935 - **Precedential status:** Published - **Opinion:** Dissent by Yesawich - **Judges:** Main, Yesawich - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5880008 ## Opinion text Yesawich, Jr., J. (dissenting). I respectfully dissent and vote to affirm. Petitioner’s suggestion, adopted by the majority, that the New York State Job Incentive Board (Board) abdicated its duty to exercise its discretion and further acted politically instead of independently when it determined that petitioner’s service branch facilities’ applications did not meet the criteria of Commerce Law former § 118 is, in my judgment, far from amply demonstrated in this record. AT&T’s supposition that the Board, at its final meeting, made no decisions on the merits due to an "overwhelming predisposition toward denial” *401 is belied by the very action taken by the Board; it sanctioned nearly half the pending applications before it based on jobs created only, the class including AT&T. Rather than reflect a systematic denial of AT&T’s applications, the record reveals that the Board’s members were familiar but anguishing over how to deal with AT&T’s complex situation, that its applications were processed in the normal fashion except that, although not required to do so, the Board accorded petitioner’s representative the privilege of furnishing clarifying information to them and then, only after questioning its own staff and considering the applications independently, did the Board members vote. Furthermore, the denial of approval was on the ground that the information that AT&T submitted "did not demonstrate that the projects were in fact creating net new jobs for New York State”. Not only was this conclusion rational and justified, for despite repeated requests to do so AT&T failed to submit documentation of the net change in New York employment from before the reorganization of American Bell to after the creation of AT&T, thus leaving the agency without verifiable employee information, but it lends added substance to respondents’ argument that the Board did in fact exercise its discretion and did so in an informed and independent manner. AT&T’s parallel argument that it was inappropriate for the Board, in determining credit eligibility, to consider whether its projects would create net new jobs in New York slights Commerce Law former § 120 (h). That section provides, in pertinent part, that "[t]he board shall not issue certificates of eligibility for any business facility which would result in the removal of a business facility of the applicant from one area of the state to another area of the state” (Commerce Law former § 120 [h]). The unavailability of credits to businesses which merely transfer jobs between different locations within the State manifests a legislative intention that jobs be created or retained in substance, not just form. The Board’s reliance on net new jobs in New York thus accords with the statute. As for the charge that the Board’s change of policy from tractable to strict enforcement of the statute was incautious and improper, it is enough to observe, as has the majority, that an agency has the power and obligation to rectify what it deems to be an erroneous interpretation of the law or an injudicious policy (Matter of Punnett v Evans, 26 AD2d 396 ). A shift in agency position to ensure affecting the statute’s purpose serves to indicate heightened agency conscientiousness, *402 not arbitrariness. While an agency’s refusal to exercise discretion to achieve some political goal may well equate to an arbitrary act, given the presumption of regularity shielding agency actions, there must be more than a profusion of speculation before it can rightfully be said that the record clearly reveals that the agency elected not to exercise its independent judgment (see, Matter of Taub v Pirnie, 3 NY2d 188, 194 ). It is worth noting here, too, that nearly half the applicants qualified for tax credits under the newly altered policy, thereby evidencing that it was not unduly burdensome or unreasonable. Kane, J. P., Weiss and Harvey, JJ., concur with Main, J.; Yesawich, Jr., J., dissents and votes to affirm in an opinion. Judgment reversed, on the law, with costs, determination annulled and petition granted. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5880008. Public record. Not legal advice.