The following papers were read upon this motion: Notice of Motion/Order to Show Cause XX Answering Papers Reply Decision/Order Petitioner moves this Court for an Order pursuant to Article 78 of the CPLR directing that the Suffolk County Police Department, Pistol Licensing Bureau, issue a pistol license to petitioner Eugene Gulotta, Jr. (Motion Sequence 001). Respondents move this Court for an order pursuant to CPLR §3211 dismissing the petition in its entirety, and, in the event that their dismissal motion is denied, for leave pursuant to CPLR §7804 (f) to serve an answer (Motion Sequence 002). Petitioner has not submitted any opposition to Motion Sequence 002. The procedural history of the petitioner’s application to respondents as set forth in paragraphs 6 through 11 of the verified petition is undisputed, except that respondents provide evidence that petitioner received respondents’ final determination letter on April 22, 2019 rather than on April 9, 2019. In pertinent part, petitioner applied to respondents for a pistol/revolver permit in May 2018. On January 15, 2019, petitioner was issued a “Pistol License Notice of Disapproval.” Petitioner appealed this determination to respondents on January 31, 2019. On April 9, 2019, respondents issued a written denial of the appeal that states, inter alia, that, “[t]his is a final agency determination.” Petitioner argues that respondents’ determination to deny his 2018 application for a pistol license, including the 2019 denial of his appeal, “was arbitrarily and capriciously denied.” Although petitioner cites to CPLR §7803 (2), based upon his argument as set forth in the petition, the instant petition appears to seek relief pursuant to CPLR §7803 (3). In any event, respondents assert that the petition is untimely and that it should be dismissed pursuant to CPLR §3211, as violative of the four-month statute of limitations afforded to proceedings challenging the determination of a body or officer as set forth in CPLR §217 (1). Respondents also assert that the decision disapproving petitioner’s pistol license application was not arbitrary or capricious. CPLR §217 (1) provides that a proceeding challenging a body’s determination must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner. A determination becomes final and binding when the aggrieved party receives notice of the determination (Biondo v. New York State Board of Parole, 60 NY2d 832, 834 [1983]; see also New York Association of Counties v. Axelrod, 78 NY2d 158, 165-66 [1991]). The four-month limitations period is applicable to the relief sought by the instant petition (see Matter of Silvestri v. Hubert, 106 AD3d 924 [2d Dept 2013]). “A strong public policy underlies the abbreviated statutory time frame: the operation of government agencies should not be unnecessarily clouded by potential litigation” (Best Payphones, Inc. v. Department of Information Technology and Telecommunications of the City of New York, 5 NY3d 30, 34 [2005], quoting Solnick v. Whalen, 49 NY2d 224, 232 [1980]). Calculating the four-month statute of limitations period from April 22, 2019, the day that petitioner received from Sergeant Christopher A. Love written notice of the final agency determination concerning his pistol license disapproval, the limitations period expired on or about August 22, 2019. Based upon the submissions presented to this Court, there were no further appeals or administrative steps available to petitioner to challenge the decision following issuance of the written denial dated April 9, 2019. Petitioner did not bring this proceeding until September 3, 2019; therefore, respondents are entitled to dismissal of the petition pursuant to CPLR §3211 (a) (5). Petitioner does not controvert respondents’ argument that the instant petition is untimely, nor does the petition contain any statement that it is timely. Moreover, the Court has reviewed its own records which reveal petitioner’s first attempt to present a petition for the same relief was also untimely. On August 28, 2019, a petition was presented to the Special Term Justice of the Supreme Court, Suffolk County; however, the notation in the Court’s records are that the Special Term Clerk returned the papers to petitioner on August 28, 2019 for correction. Thus, there is no reasonable view of the existing evidence that supports a conclusion that the instant petition is, or was ever, timely, thereby warranting dismissal. Even if this Court were to have considered the instant petition timely, which it does not, respondents’ determination to deny petitioner’s application for a pistol license was neither arbitrary nor capricious, or without a rational basis. The Court recognizes that possession of a handgun license is a privilege, not a right, which is subject to the broad discretion of the licensing officer (Papaioannou v. Kelly, 14 AD3d 459 [1st Dept 2005]; Kaplan v. Bratton, 249 AD2d 199 [1st Dept 1998]; Sewell v. City of New York, 182 AD2d 469 [1st Dept 1992]). Furthermore, pursuant to Penal Law §400.00 (11), the licensing officer is vested with broad discretion in determining whether an applicant has the requisite character, judgment and temperament to possess a pistol license (Martino v. Nassau County Police Department, 66 AD3d 781 [2d Dept 2009]; Moreno v. Cacace, 61 AD3d 977 [2d Dept 2009]; Orgel v. DiFiore, 303 AD2d 758 [2d Dept 2003]). In an Article 78 proceeding where the petitioner challenges the determination of the licensing officer, the only issue to be reviewed by this Court is whether the administrative decision to revoke or deny a pistol license was arbitrary and capricious (CPLR §7803 [3]; Matter of Armacida v. Reitz, 141 AD3d 713, 714 [2d Dept 2016]). In other words, the Court’s function is limited to ascertaining whether there is a rational basis for the agency’s determination (Sewell, supra; Moreno, supra at 978). A rational basis exists when the evidence adduced is sufficient to support the agency’s action (Papaioannou, supra). Here, the April 9, 2019 letter denying petitioner’s appeal, which is authenticated by the affidavit of Sgt. Love, sets forth in great detail the reasons for denying petitioner a pistol license, including petitioner’s documented history of domestic disputes and his “failure to disclose [his] evaluation for mental health issues” that occurred in 2007 as the result of having made suicidal threats to his then-wife, after which he left his residence with a shotgun in his possession. This mental health evaluation was held at Stony Brook Hospital where petitioner was brought by police escort on August 22, 2007. It is stated in respondents’ denial letter that petitioner’s answer of “no” to question #45 concerning mental illness is inconsistent with the Suffolk County police records detailing the August 22, 2007 incident. Moreover, respondents found “unconvincing” petitioner’s reason for having answered “no” to question #45, which was that he did not intend to purposefully falsify his application but that his then-wife made a false allegation regarding that suicide attempt, and that this issue was not previously raised as a ground for denial of his 2016 pistol license application. Respondents explained in the denial letter that notwithstanding the merit of the accusations that resulted in petitioner being transported to the hospital, petitioner was, nonetheless, transported for mental health evaluation, and “[b]y withholding this information you prevented the Licensing Officer from conducting a thorough investigation.” This inconsistency between petitioner’s answer to question #45 and police records evidencing petitioner’s failure to disclose the mental health evaluation that occurred on August 22, 2007 following his suicide threat and possession of a shotgun provided a rational basis to deny petitioner a pistol license (see Matter of Nelson v. County of Suffolk, 171 AD3d 756 [2d Dept 2019]; Moreno, supra at 978). Accordingly, respondents’ motion to dismiss is granted (Sequence 002), and the petition is dismissed (Sequence 001). The foregoing constitutes the Decision and Order of this Court. Dated: December 11, 2019 Riverhead, NY FINAL DTSPOSITION [X] NON-FINAL DISPOSTITON [ ]
