matter of formica constr. v. mintz, 65 a.d

10/1/2015 Matter of Formica Constr. v. Mintz, 65 A.D.3d 686

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Document: Matter of Formica Constr. v. Mintz, 65 A.D.3d 686 Actions

Matter of Formica Constr. v. Mintz, 65 A.D.3d 686

Supreme Court of New York, Appellate Division, Second Department

August 25, 2009, Decided

2008­03701

Reporter

65 A.D.3d 686 | 885 N.Y.S.2d 298 | 2009 N.Y. App. Div. LEXIS 6187 | 2009 NY Slip Op 6325

In the Matter of Formica Construction, Inc., et al., Respondents, v Jonathan Mintz, Appellant. (Index No. 80357/07)

Prior History: Matter of Formica Construction Inc. v. Mintz, 2008 N.Y. Misc. LEXIS 8956 (N.Y. Sup. Ct., Mar. 17, 2008)

Core Terms

license, renew, criminal offense, home improvement, contractor's license, petitioners', set forth, annulled, factors, trench, specific individual, statutory factors,

licensing agency, general public, inter alia, responsibilities, applicant's, occurrence, collapsed, convicted, directing, modified, remitted, appeals, duties

Case Summary

Procedural Posture

Respondent New York City Department of Consumer Affairs (DCA) appealed an order and judgment by the Richmond County Supreme Court (New York) thatgranted petitioner contractor's application to renew its home improvement contractor license, annulled the DCA's determination, and directed it to grant theapplication.

Overview

After one of the contractor's principals was incarcerated for criminally negligent homicide, involving a failure to comply with safety regulations regarding trenches,the contractor's application to renew its home improvement contractor license was denied. The appellate court found, inter alia, that the reasoning the DCAarticulated in its answer to the contractor's petition did not reflect that it considered all eight of the factors set forth in Correction Law § 753(1). Accordingly, thetrial court properly annulled the DCA's determination denying the application. However, because the trial court should have remitted the matter to the DCA forconsideration of the statutory factors and a new determination of the contractor's application to renew its license under Correction Law § 752, it erred in directingthe DCA to grant the application.

Outcome

The order and judgment were modified by deleting the provision thereof directing the DCA to grant the application and substituting therefor a provision remittingthe matter for a new determination of the application; as so modified, the order and judgment were affirmed.

LexisNexis® Headnotes

Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > General Overview

Governments > Local Governments > Licenses

Copy Citation

10/1/2015 Matter of Formica Constr. v. Mintz, 65 A.D.3d 686

https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f47ca1a9-9e8f-4e35-a982-eadee40e98d0&pddocfullpath=%2Fshared%2Fdocument… 2/3

HN1 Correction Law art. 23­A sets forth the conditions under which a licensing agency may deny a license due to an applicant's criminal conviction, andenumerates the factors that the agency must consider in reviewing the applicant's criminal history. Correction Law §§ 750­753. Shepardize ­ Narrow by thisHeadnote

Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > General Overview

Governments > Local Governments > Licenses

HN2 Pursuant to Correction Law § 752, a license application may be denied where there is a direct relationship between a previous criminal offense and thespecific license or employment sought. Correction Law § 752(1), or where the issuance of the license would involve an unreasonable risk to property or to thesafety or welfare of specific individuals or the general public. Correction Law § 752(2). Shepardize ­ Narrow by this Headnote

Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > General Overview

Governments > Local Governments > Licenses

HN3 Correction Law § 753(1) provides that, in making a determination pursuant to Correction Law § 752, a licensing agency shall consider the followingfactors: (a) the public policy of the state, as expressed in the Correction Law, to encourage the licensure and employment of persons previously convicted of one ormore criminal offenses; (b) the specific duties and responsibilities necessarily related to the license sought; (c) the bearing, if any, the criminal offense for whichthe person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities; (d) the time which has elapsed since theoccurrence of the criminal offense; (e) the age of the person at the time of occurrence of the criminal offense; (f) the seriousness of the offense; (g) evidence ofrehabilitation and good conduct; and (h) the public agency's legitimate interest in protecting the safety and welfare of specific individuals and the generalpublic. Shepardize ­ Narrow by this Headnote

Governments > Local Governments > Licenses

HN4 In reviewing an application to renew a home improvement contractor license based upon Correction Law § 752, the New York City Department ofConsumer Affairs must first consider all of the factors set forth in Correction Law § 753(1), and then make a new determination. Shepardize ­ Narrow by thisHeadnote

Headnotes/Syllabus

Headnotes

Licenses­­Home Improvement Contractors.­­Where Department of Consumer Affairs (DCA) denied application to renew petitioner's home improvement contractor(HIC) license on ground that one of petitioner's principals had recent felony conviction that was related to license sought, but DCA did not indicate that itconsidered all eight statutory factors set forth in Correction Law § 753 (1), Supreme Court properly annulled DCA's determination denying application; however,Supreme Court erred in directing DCA to grant petitioner's application to renew HIC license; in reviewing application to renew HIC license based upon CorrectionLaw § 752, DCA must first consider all of factors set forth in Correction Law § 753 (1), and then make new determination; thus, Supreme Court should haveremitted matter to DCA for consideration of statutory factors and new determination of application to renew HIC license.

Counsel: Michael A. Cardozo , Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Julian L. Kalkstein of counsel), for appellant.

John Z. Marangos , Staten Island, N.Y. (Denise Marangos of counsel), for respondents.

Judges: MARK C. DILLON , J.P., HOWARD MILLER , JOHN M. LEVENTHAL , CHERYL E. CHAMBERS , JJ. DILLON, J.P., MILLER , LEVENTHAL and CHAMBERS ,

JJ., concur.

Opinion

[686]

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the New York City Department of Consumer Affairs dated July 18, 2007, whichdenied the petitioners' application to renew a home improvement contractor license, Jonathan Mintz, Commissioner, New York City Department of Consumer Affairs,appeals, as limited by his brief, from so much of an order and judgment (one paper) of the Supreme Court, Richmond County (Maltese, J.), dated March 17, 2008, asgranted the petition, annulled the determination, and directed the New York City Department of Consumer Affairs to grant the application to renew the petitioners' homeimprovement contractor license.

10/1/2015 Matter of Formica Constr. v. Mintz, 65 A.D.3d 686

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Ordered that the order and judgment is modified, on the law, by deleting the provision thereof directing the New York City Department of Consumer Affairs to grant theapplication to renew the petitioners' home improvement contractor license and substituting therefor a provision remitting the matter to the New York City Departmentof Consumer Affairs for a new determination of the application to renew the subject home improvement contractor license; as so modified, the order and judgment isaffirmed insofar as appealed from, without costs or disbursements.

The petitioners Kenneth Formica, his brother William Formica, Jr., and their mother Rosemarie Formica, are the principals of Formica Construction, Inc. (hereinafter FCI),a [687] family­operated business. The petitioner Kenneth Formica (hereinafter Formica) pleaded guilty to criminally negligent homicide after a trench excavated by himcollapsed upon and killed a worker who was in the trench at Formica's direction. Formica admitted that he did not shore the trench, as required by regulationspromulgated pursuant to the federal Occupational Safety and Health Act (29 USC § 651 et seq.), to prevent it from collapsing. While serving his sentence of 16weekends in jail, Formica applied to renew FCI's home improvement contractor (hereinafter HIC) license with the New York City Department of Consumer Affairs(hereinafter the DCA). The DCA denied the application. FCI, Formica, his brother William, and his mother Rosemarie commenced this proceeding pursuant to CPLR article78 to review that determination. The Supreme Court, inter alia, granted the petition, annulled the DCA's determination, and directed the DCA to grant the petitioners'application. Jonathan Mintz, Commissioner of the DCA, appeals.

HN1 Correction Law article 23­A sets forth the conditions under which a licensing agency may deny a license due to an applicant's criminal conviction, andenumerates the factors that the agency must consider in reviewing the applicant's criminal history (see Correction Law §§ 750, 751, 752, 753). HN2 Pursuant toCorrection Law § 752, a license application may be denied where there is "a direct relationship between [the previous criminal offense] and the specific license oremployment sought" (Correction Law § 752 [1]), or where the issuance of the license would involve an "unreasonable risk to property or to the safety or welfare ofspecific individuals or the general public" (Correction Law § 752 [2]). HN3 Correction Law § 753 (1) provides that, in making a determination pursuant to CorrectionLaw § 752, the licensing agency shall consider the following factors: (a) the public policy of this state, as expressed in the Correction Law, to encourage the licensureand employment of persons previously convicted of one or more criminal offenses; (b) the specific duties and responsibilities necessarily related to the license sought; (c)the bearing, if any, the criminal offense for which the person was previously convicted will have on his fitness or ability to perform one or more such duties orresponsibilities; (d) the time which has elapsed since the occurrence of the criminal offense; (e) the age of the person at the time of occurrence of the criminal offense;(f) the seriousness of the offense; (g) evidence of rehabilitation and good conduct; and (h) the public agency's legitimate interest in protecting the safety and welfare ofspecific individuals and the general public.

Here, the DCA denied the application to renew FCI's HIC [688] license on the ground that Formica had a recent felony conviction that was related to the licensesought. The DCA did not set forth its reasoning for its determination until it was compelled to do so by the commencement of this proceeding. The reasoning that theDCA articulated in its answer to the petition does not reflect that it considered all eight statutory factors set forth in Correction Law § 753 (1). Accordingly, the SupremeCourt properly annulled the DCA's determination denying the application.

However, the Supreme Court erred in directing the DCA to grant the petitioner's application to renew the HIC license. HN4 In reviewing the application to renew theHIC license based upon Correction Law § 752, the DCA must first consider all of the factors set forth in Correction Law § 753 (1), and then make a new determination.Thus, the Supreme Court should have remitted the matter to the DCA for consideration of the statutory factors and a new determination of the application to renew theHIC license.

The appellant's remaining contention is not properly before this Court. Dillon, J.P., Miller, Leventhal and Chambers, JJ., concur.

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