NOTICE OF PETITION

SUPREME COURT OF THE STATE OF XXX

COUNTY OF XXX

 

Index No. _______________

 

NOTICE OF PETITION

 

ORAL ARGUMENT REQUESTED

 

 

…………………………………………………X

 

XXXX,

 

Petitioner

 

-against-

 

XXXX CITY DEPARTMENT OF

BUILDINGS,

 

Respondent

 

 

For a Judgment Pursuant to Article 78

of the Civil Practice Law and Rules

………………………………………………………………….X

 

PLEASE TAKE NOTICE that, upon the Verified Petition of RODNEY MELVIN, pro se, and the exhibits thereto, which Petition shall follow this Notice, the undersigned will move this Court at the Supreme Court of XXXX, County of XXXX, XXX County Courthouse, 60 Centre Street, XXXX, on _____________, 20___, at ________ in the __________ noon, or a soon as he may be heard, for an order and judgment pursuant to Article 78 of the Civil Practice Laws and Rules (“CPLR”) granting the Petition and specifically:

  1. annulling, vacating and setting aside the determination made by the Respondent, which decision denied Petitioner’s request for reconsideration of the denial of Petitioner’s Master Fire Suppression Piping Contractor (“MFSPC”) Class B license application;
  2. declaring Respondent’s decision unconstitutional; and
  3. granting Petitioner all other relief as this Court deems just and proper.

PLEASE TAKE FURTHER NOTICE that pursuant to C.P.L.R. § 7804(c), answering papers, if any, shall be served and filed at least five days before the return date of this application and reply papers will be served at least one day before that date.

 

Dated: ___________________

Respectfully submitted,

 

 

____________________

XXX

 

 

 

 

SUPREME COURT OF THE STATE OF XXX

COUNTY OF XXX/strong>

 

Index No. _______________

 

VERIFIED PETITION

 

ORAL ARGUMENT REQUESTED

 

 

…………………………………………………X

 

XXXX,

 

Petitioner

 

-against-

 

XXX DEPARTMENT OF

BUILDINGS,

 

Respondent

 

 

For a Judgment Pursuant to Article 78

of the Civil Practice Law and Rules

………………………………………………………………….X

 

Petitioner XXX submits this memorandum of law in support of his Petition pursuant to NY CPLR Art. 78, alleges as follows:

THE NATURE OF THE PROCEEDING

  1. Petitioner brings this Article 78 proceeding to have the decision issued by the Respondent annulled. Respondent denied Petitioner’s request for reconsideration of the denial of Petitioner’s Master Fire Suppression Piping Contractor (“MFSPC”) Class B license application. Respondent denied Petitioner’s application yet it granted the application(s) of other similarly placed individuals. Respondent also admitted that there is no settled definition of design, which definition is central to Petitioner’s application. Lastly, Respondent’s unjust application of the law is unconstitutional. Respondent’s determination was therefore based on errors of law and was insufficiently supported by required justifications.

 

SOURCE OF JURISDICTION

  1. This Court may conduct “special proceedings” pursuant to Article 78 of New York’s Civil Practice Law and Rules. See CPLR §§ 7801-7806. Petitioner seeks review of Respondent’s determinations, pursuant to CPLR § 7803(3).
  2. Respondent is a “body” subject to judicial review pursuant to Article 78 of New York’s Civil Practice Law and Rules. See CPLR § 7802(a).

VENUE

  1. Venue is proper in XXX County, which is Respondent’s principal place of business, and the place where the adverse agency determination was made. CPLR §§ 7804(b) & 506(b).

SUMMARY OF RESPONDENT’S ERRORS

  1. Respondent’s decision was arbitrary. Respondent issued Master Plan licenses and Master Fire Suppression licenses to other similarly placed individuals, and denied granting Petitioner’s application.
  2. Respondent lacks a concise definition of design, which definition is central to the determination of the instant case.
  3. Respondent’s decision is unconstitutional to the extent it subjected Petitioner to unfair treatment.

FACTUAL BACKGROUND

  1. On XXX, Petitioner filed a Master Fire Suppression Piping Contractor (“MFSPC”) Class B license application. On July 20, 2022, the XXX City Department of Buildings denied Petitioner’s application on the ground that Petitioner had failed to demonstrate at least seven years of planning, design, or installation of fire suppression piping systems (Exhibit A).
  2. On XXX, XXX, Petitioner’s co-worker at XXX swore an affidavit, affirming that he worked with Petitioner. He swore that he witnessed Petitioner performing inspections, testing maintenance, repair and installation of stand pipes, sprinklers, and Combo systems. He also observed Petitioner perform measurements, cutting, fabrication, and fitting of blk pipe, Galvanized pipe, and Ductile Iron Pipe. Further, he swears that many fittings, valves, plumbing and fitter tools were used, and that piping systems were designed and installed as per NFPA codes and according to XXX instructions (Exhibit B, pg. 1).
  3. On XXX, Petitioner’s co-worker at V. Barile, swore an affidavit, affirming that he worked with Petitioner. He swore that he witnessed Petitioner during the installation/design, repair and maintenance of fire suppression systems in New York City Housing Authority. He further swore that he witnessed Petitioner inter alia, install sprinkler systems, measure and cut pipes, measure, cut and apply bracing to pipes, and measure locations for pipe penetrations (Exhibit B, pg. 2).
  4. On XXX, XXX, Petitioner’s former workmate at XXXX, swore that he worked with Petitioner at V. Barile, during the installation, testing, maintenance, and repair of fire suppression systems. Brendan further swore that he witnessed Petitioner perform the following: taking measurements, cutting pipe, fabrication, installing sprinklers, installing hangers and pipe bracings, connecting pipe and fittings, testing sprinklers and standpipe systems for the FDNY, and responding to emergency calls after fires or major breaks in the fire suppression system piping (Exhibit E).
  5. On December 9, 2022, the Respondent conceded that “Design” is not a defined term in the NYC Building Code (Exhibit L).
  6. On September 15, 2022, Petitioner requested for a reconsideration of the Department’s denial of the application (Exhibit A).
  7. Petitioner has a Master Plumber or Master Fire Suppression Piping Contractor Experience Verification Form. The Form filled on XXX, contained a statement from Petitioner’s supervisor, XXX, affirming inter alia, that Petitioner was employed from XXX affirmed that a MFSPC is not a design professional and Petitioner worked as an inspector, and was involved in the inspection, testing, maintenance, repair, and installation of water-based fire sprinkler and standpipe systems (Exhibit C, pg. 3, Question B). This aligns with email of NYC DOB Construction Code team.
  8. On February 6, 2023, Petitioner received the determination of the XXX Department of Buildings regarding Petitioner’s Freedom of Information Law (“FOIL”) request for all Master Plumber or Master Fire Suppression Piping Contractor Experience Verification Forms received between July 1, 2019 and April 9, 2022. The Department held that Petitioner’s appeal expands the date range of the original request to July 1, 2011 to December 31, 2022, which is not appropriate for a FOIL appeal. The Department only granted Petitioner’s original request and sent Petitioner copies of Exhibits F, G (Exhibit D), K, J, M, and O.
  9. Exhibit F consists of a Form filled on XXX, which shows that Edward Cortez was employed from XXX 7 at Backflow Prevention of New York, LLC. Paul Paddock, the owner of Backflow Prevention, affirmed that XXX Cortex was a plumbing mechanic under his employment, and that his work involved installing plumbing that was designed by others. Edward was granted Master Plumber license (Exhibit F, pg. 3, Question B; 8, Question B; pg. 11).
  10. Exhibit G consist of a Form filled on XXX, which shows that XXX was employed from 2018 to 2020 at Orbit Plumbing and Heating Inc. XXX, the owner of Orbit Plumbing, affirmed that XXXX was a plumber/journeyman under his employment, and that Bartlomiej XXXpossessed extended knowledge of his professional work. Bartlomiej was granted Master Plumber license (Exhibit G, page 3, Question B; 11).
  11. On XXX, the Department denied Petitioner’s request for reconsideration of the denial of Petitioner’s Master Fire Suppression Piping Contractor (“MFSPC”) Class B license application (Exhibit A). The Department held that there was conflicting information between Petitioner’s former supervisor at V.XXXX, Inc., who stated that Petitioner performed no design work involving fire suppression systems, and Petitioner’s co-worker, XXXX, who stated that Petitioner performed installation/design of fire suppression systems. The Department therefore held that Petitioner had failed to prove that he worked for at least seven years to qualify for the license.

ARGUMENTS

RESPONDENT’S DECISION IS ARBITRARY

  1. Judicial review of a discretionary administrative action, such as the issuance of a license, is limited to finding whether there was a rational basis for the administrative action. See Sullivan County Harness Racing Assn. v. Glasser, 30 NY2d 269, 283 NE2d 603, 332 NYS2d 622 [1972]. Thus, the only issue for consideration by the court is whether the administrative determination- in this case whether petitioner qualifies for the license in question- was arbitrary and capricious, or an abuse of discretion. See Arrocha v. Board of Educ, Of City of NY, 93 NY2d 361, 712 NE2d 669, 690 NYS2d 503 [1999]). An action is arbitrary if it “is without sound basis in reason and is generally taken without regard to the facts.” See Pell v. Bd. of Educ, 34 NY2d 222, 313 NE2d 321, 356 NYS2d 833 [1974]).
  2. Further, an agency decision “which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious”. See Matter of Field Delivery Serv, 66 N.Y.2d 516, 498 N.Y.S.2d 111, 488 N.E.2d 1223 (N.Y. 1985).
  3. In In re Babino v. Dep. of Citywide Admin. Serv., 116423/10, 9 (N.Y. Sup. Ct. 2011), the Court held that “[w]hile the Department may have some discretion in deciding who is worthy of receiving a license for fire suppression, that discretion is not unlimited. There must be some serious attempt to justify a denial…” The Agency’s decision should be reversed where there is uncontested evidence showing the applicant’s qualification for a Master Plumbing License.
  4. In this action, Respondent was not impartial when issuing Master Plumbing licenses. Respondent issued Master Plan licenses to other similarly placed individuals, and denied granting Petitioner’s application.
  5. First, Edward Cortez, who was employed from 2014 to 2017 at Backflow Prevention of New York, LLC, filed a Master Plumber or Master Fire Suppression Piping Contractor Experience Verification Form. In the form, Paul Paddock, the owner of Backflow Prevention, affirmed that Edward Cortex was a plumbing mechanic under his employment, and that his work involved installing plumbing that was designed by others. Paul Paddock also stated that Edward did no work amounting to the planning or design of plumbing and/or fire suppression systems. The foregoing notwithstanding, Respondent proceeded to grant Edward a Master Plumbing license (Exhibit F, pg. 3, Question B; 8, Question B; pg. 11).
  6. Next, XXX, who was employed from 2018 to 2020 at Orbit Plumbing and Heating Inc, filed a Master Plumber or Master Fire Suppression Piping Contractor Experience Verification Form. In the form, XXXX, the owner of Orbit Plumbing, affirmed that XXXX was a plumber/journeyman under his employment. Louis also stated that Edward did no work amounting to the planning or design of plumbing and/or fire suppression systems. The foregoing notwithstanding, Respondent proceeded to grant Edward a Master Plumbing license (Exhibit G, page 3, Question B; 11).
  7. Next, Michael A. Gallagher had a work description similar to Petitioner’s as stated in Petitioner’s EVF form and the supporting affidavits from coworkers, Angel D, Francis M. Jr and Brendan K (Exhibit K, page 4). Yet, Michael Gallagher received a Master Plumber license (Exhibit K, page 6).
  8. XXXX also had a work description similar to Petitioner’s as stated in Petitioner’s EVF form and the supporting affidavits from coworkers ,XXX. (Exhibit J, page 4) Yet David K received a Master Fire Suppression Piping Contractor license (Exhibit J, page 6).
  9. XXX also had a work description similar to Petitioner’s as stated in Petitioner’s EVF form and the supporting affidavits from coworkers, XXX. (Exhibit M, page 4). Yet XXX received Master Fire Suppression Piping Contractor license., (Exhibit M, page 6).
  10. Petitioner has also attached Exhibit O, which is EVF forms he received from his other employer Crescent Contracting Corp and his current employer General Plumbing Corp. (Exhibit O, page 4). Petitioner’s duties as stated in said exhibit were considered acceptable design experience, by the NYC Department of buildings (Exhibit O, page 9). It follows; the work descriptions from said exhibit are similar to the descriptions in Petitioner’s EVF’s from V. Barile Inc, and supporting affidavits from coworkers, Angel D, Francis M. Jr and Brendan K. and all the other aforementioned exhibits “M, N, K, J, F, and G “.
  11. Petitioner cannot therefore understand why when it comes to his case, the Respondent refuses to grant him the license yet it did for the aforesaid individuals. Notably, Petitioner has proof of statements from his co-workers whose statements imply that Petitioner did work amounting to the planning or design of plumbing and/or fire suppression systems. For instance, Brendan Kirk swore that he witnessed Petitioner perform the following: taking measurements, cutting pipe, fabrication, installing sprinklers, installing hangers and pipe bracings, connecting pipe and fittings, testing sprinklers and standpipe systems for the FDNY, and responding to emergency calls after fires or major breaks in the fire suppression system piping (Exhibit E).
  12. It follows; the Respondent’s decision is arbitrary because it granted the said individuals Master Plumber licenses but denied Petitioner’s application, who has even better qualifications than the individuals.

RESPONDENT APPLIED AN ERRONEOUS DEFINITION OF DESIGN

  1. An agency’s interpretation of the statutes it administers, if not unreasonable or irrational, is entitled to judicial deference. See Kurcsics v. Merchants Mut. Ins. Co., 49 NY2d 451, 459). The converse is also true. An unreasonable or irrational interpretation renders the interpretation inapplicable.
  2. “It remains a basic principle of statutory construction that a court will `not by implication read into a clause of a rule or statute a limitation for which… no sound reason [can be found] and which would render the clause futile.'” See Matter of Industrial Comr. of State of N.Y. v Five Corners Tavern, 47 N.Y.2d 639, 646-647, quoting Lederer v Wise Shoe,276 N.Y. 459, 465.
  3. In its correspondence to Petitioner dated XXXX, the Respondent stated that a “registered design professional must provide hydraulic calculations and construction documents”. Respondent further acknowledged that “[d]esign” is not a defined term in the NYC Building Code, and that where terms are not defined through the methods authorized by 2022 NYC Building Code, such terms shall have ordinarily accepted meanings such as the context implies.
  4. It is Petitioner’s contention that the Respondent misinterpreted the word design by giving it a strict interpretation, standard or secret definition that is unbeknown to the public.
  5. Petitioner avers that since no concise definition arises, no such strict interpretation should be given to the word. Respondent’s requirement for people applying for a Master Fire Suppression Piping Contractor (“MFSPC”) Class B license to prove an undefined standard or secret definition would unduly limit the number of qualified applicants.
  6. As a matter of fact, Petitioner performed duties, which meet the threshold under New York City Administrative Code Section 28-410.4.1(1). Notably, Plaintiff was involved in the inspection, testing, maintenance, repair, and installation of water-based fire sprinkler and standpipe systems. Plaintiff also performed the following: taking measurements, cutting pipe, fabrication, installing sprinklers, installing hangers and pipe bracings, connecting pipe and fittings, testing sprinklers and standpipe systems for the FDNY, and responding to emergency calls after fires or major breaks in the fire suppression system piping.
  7. The foregoing tasks surely meet the threshold for proving one’s qualification for a Master fire, suppression piping contractor license especially since the aforementioned exhibits show individuals performed the exact same task as Petitioner.

RESPONDENT’S DECISION IS UNCONSTITUTIONAL

  1. The right to a fair trial applies in both civil and criminal cases. Illinois v. Allen, 397 U.S. 337 (1970). As a minimum the right to fair trial includes the following fair trial rights in civil and criminal proceedings: the right to be heard by a competent, independent and impartial tribunal.
  2. In this case, the impartiality of the Respondent was brought to question when it issued Master Plan licenses and fire suppression piping contractor licenses.
  3. The Respondent’s bias therefore amounts to a violation of Petitioner’s constitutional right to a fair trial.
  4. No prior application has been made for the relief sought herein.

CONCLUSION

WHEREFORE, Petitioners request that this Court issue a judgment:

  1. Annulling, vacating and setting aside the determination made by the Respondent, which decision denied Petitioner’s request for reconsideration of the denial of Petitioner’s Master Fire Suppression Piping Contractor (“MFSPC”) Class B license application;
  2. Compelling Respondent to issue Petitioner Master Fire Suppression Piping Contractor (“MFSPC”) Class B license;
  3. Declaring Respondent’s decision unconstitutional; and
  4. Granting Petitioner all other relief as this Court deems just and proper.

 

Dated: _______________

___________________________

XXX

 

VERIFICATION

I, XXX, Petitioner in this case, hereby affirms under penalty of perjury that the following statements are true, except for those made upon information and belief, which I believe to be true: I have reviewed the foregoing Petition and swear it is true upon information and belief, the source of which is my personal knowledge and the appended documents provided by Petitioner.

 

 

Dated: _______________

___________________________

XXX

 

 

 

 

 

 

 

 

 

CERTIFICATE OF SERVICE

I certify that a copy of this foregoing PETITION document will be __________ on _______________ via USPS First Class Mail to the Respondent in the following address:

 

 

[ENTER ADDRESS]

 

 

 

 

 

Dated: _______________

___________________________

XXXX

 

 

 

 

 

 

 

 

 

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