Recitation as per CPLR §§2219(a) and/or 3212(b) of papers considered on review of this motion: NYSCEF Doc #s 1-11; 14-20; 35-38 by Pet. NYSCEF Doc #s 21-33 by Resp.’s For Judgment pursuant to Article 78, CPLR, DECISION/ORDER Upon the foregoing cited papers and after oral argument held on April 19, 2023, the portion of the Verified Petition which raises a question of whether the challenged administrative determination issued by the Office of Administrative Trials and Hearings (“OATH”) following the proceeding (as defined below) was supported by substantial evidence is transferred to the Second Judicial Department pursuant to CPLR §7804(g), whereas the remainder of the Verified Petition which challenges nonrenewal of the petitioner’s license is denied as not being arbitrary and capricious pursuant to CPLR §7803(3). BACKGROUND On August 16, 2021, Petitioner’s license renewal application as a hoisting machine operator was initially denied based on his unlicensed operation of a hoisting machine on May 19, 2001 and causing a serious accident.1 On August 19, 2021, Petitioner brought an initial CPLR Article 78 proceeding in the form of mandamus to compel a final determination of his license renewal, which proceeding was subsequently denied and dismissed as moot,2 given that a final determination was issued on March 15, 2022.3 Petitioner now brings the instant CPLR Article 78 proceeding contending that Respondent Department of Building’s (“DOB”) decision to deny his license renewal as a hoisting machine operator was arbitrary and capricious, and, separately, that such non-renewal was based (in whole, if not in part) on the erroneous determination by OATH, dated June 30, 2022, in Appeal No. 200362, which, in relevant part, sustained a $25,000 penalty against Petitioner for violation of DOB Code §28-405.1 (“OATH proceeding”).4 Petitioner seeks (among other relief) an Order directing DOB to renew his license retroactively.5 Respondents oppose, arguing (among other contentions) that the DOB’s denial of Petitioner’s application for renewal of his license was reasonable and rational, as well as supported by the administrative record in the OATH proceeding. Additionally, Respondents contend that, to the extent Petitioner raises a question of substantial evidence as to the OATH proceeding, such question should be transferred to the Second Judicial Department pursuant to CPLR §7804 (g).6 DISCUSSION To the extent Petitioner challenges the DOB’s non-renewal of his license as a hoisting machine operator, such determination was neither arbitrary and capricious, nor irrational. See e.g. Matter of Tsamasiros v. New York City Dept. of Buildings, 222 A.D.3d 543, 544 [1st Dept. 2023]; Matter of Dickerson v. New York State Dept. of State, Div. of Licensing Services, 201 A.D.3d 460, 461 [1st Dept. 2022]; Matter of Theodorakis v. Suffolk County Off. of Citizen Affairs, 251 A.D.2d 336, 337 [2d Dept. 1998] See also Matter of Danish v. Taxi and Limousine Commn., NYC, 44 A.D.3d 1042 [2d Dept. 2007]; Matter of Motor Network, Ltd. V. Martinez, 29 A.D.3d 911 [2d Dept. 2006]. Where, as here, a portion of the CPLR article 78 petition “raises a question of whether an administrative determination is supported by substantial evidence”,7 such portion of the proceeding should be transferred to the Appellate Division to address the issue. See CPLR §7804(g); Matter of Doran v. Town of Babylon, 219 A.D.3d 832, 833-834 [2d Dept. 2023]. Accordingly, the remainder of the Verified Petition which raises the question of whether the challenged administrative determination issued in the OATH proceeding was supported by substantial evidence is transferred to the Second Judicial Department pursuant to CPLR §7804(g),See e.g. Matter of Zhuo v. City of New York, ___ A.D.3d ___, 2024 N.Y. Slip Op. 02161 [1st Dept. 2024]; Matter of Allecia v. New York Dept. of Buildings, 181 A.D.3d 455 [1st Dept. 2020]. The Corporation Counsel is directed to serve a copy of this Decision and Order with Notice of Entry upon the Kings County Clerk, who is hereby directed to transfer the file to the Clerk of the Appellate Division, Second Judicial Department, for the disposition of the remainder of the Verified Petition in accordance herewith. This constitutes the Decision and Order of the Court. Dated: April 29, 2024
