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COURT, APPELLATE DIVISION FIRST DEPARTMENT APRIL 26, 2012
THE COURT ANNOUNCES
In re Jerry Delakas, Petitioner-Appellant, -againstJonathan Mintz, etc., Respondent-Respondent.
Santamarina & Associates, for appellant.
(Gil Santamarina New York
of counsel), (Alyse Fiori of
Michael A. Cardozo, Corporation counsel), for respondent. Order and judgment County
Court, New York 4, 2011, which denied to annul
(Cynthia S. Kern, J.), entered April and dismissed a CPLR article
the petition and vacate
6, 2011, an
denying petitioner's existing newsstand,
to renew a license to operate costs.
does not qualify
for a license pursuant basis (see Matter
to 6 RCNY § 2-64(a) (12) has a rational
of Wooley v New York State Dept. of 15 NY3d 275, 280 ). As the dissent
points out, 6 RCNY § 2-64(a) (12) mandates must be met before assigned holder. a license to operate
three requirements may be
upon the death or disability Even a cursory
of the named license shows that is a
review of the first subsection
petitioner dependent one-time existing, included
does not qualify. spouse, dependent
It reads: U(A) the applicant domestic partner, dependent
child or prethat had
of the former licensee, relationship
or bears another
to such former licensee
on such licensee."
been paying a monthly license since 1987.
rent to successive
owners of the operating in his own name
He never sought the license passed
until the last named licensee continue the improper
away and he could no longer Thus, it was the license,
and not any of the three previous was dependent.1 Finally, was certainly although
on which petitioner
not necessary conclusion
for this determination, that petitioner had to be
aware of the illicit, by his payments
under the table arrangement owners beginning
he facilitated as far back as was the it.
to three separate
1987; each owner submitted operator of the newsstand
sworn statements while petitioner
lAs petitioner does not meet the first requirement of § 264(a) (12), it is not necessary to address the other two.
that our review of this matter
limited to whether determination.
there is any rational basis
of whether we agree with it, on this determination is
record, it cannot be said that respondent's irrational. Petitioner
is free to seek a license under his own name
RCNY § 2-64(1) (11)). given priority
He just may not jump ahead of those who are of law. remaining contentions and find
as a matter
We have reviewed them unavailing.
All concur except Mazzarelli who dissent in an memorandum as follows:
(dissenting) submitted an
Upon the death of the licensee, petitioner application pursuant
to 6 RCNY § 2-64(a) (12) seeking
to renew and
transfer to his name the license for the newsstand of Lafayette operated Street
at the corner had
and Astor Place, which petitioner
than 20 years and rebuilt
in 1993 at a cost of 6, 2011, that respondent
By letter dated January on the ground
the application that
"ha[d] not demonstrated discretion
should exercise under section
to issue a license
2-64(a) (12) of the Rules of the City of New York, the applicable provision." The letter did not provide any further explanation. agrees, that basis since or
Supreme Court respondent's denial
found, and the majority of the application that the licensees dependent
had a rational employed
there is no evidence
that he was financially before us, I disagree
Under the record
and would grant the petition.
6 RCNY § 2-64(a) (12) provides: "Death or disability of licensee. At the discretion of the Commissioner or his or her designee, upon the death or permanent disability of the person who was licensed to operate a newsstand at a location, DCA [Department of Consumer Affairs] may accept an application for a license to operate such existing newsstand where: " (A) the applicant is a dependent spouse, dependent domestic partner, dependent child or one-time employee
of the former licensee, or bears another pre-existing, established relationship to such former licensee that included financial dependence on such licensee; "(B) the applicant demonstrates to DCA that the operation of such newsstand will be his or her principal employment; and "(C) the applicant is a person to whom the grant of such license would be in the interests of fairness
Petitioner satisfies these requirements. established by § for the to her to
First, petitioner relationship"
has the "pre-existing,
to the former licensees
2- 64 (a) (12) (A). newsstand
The record establishes
that the license and transferred
was issued to Stella Schwartz, Ashley,
and that they allowed
operate the stand since 1987 in exchange week. When Katherine
for a fee of $75 per in her last will who had
died in 2006, a provision
and testament diligently
stated her "wish" that petitioner, the day to day operations
of the newsstand a warm, trusting her in to
for many years,
and with whom she had "developed continue to operate
and loving relationship," as "franchisee."
it and succeed transferred continued
While the license was instead husband, Sheldon, petitioner
2008 to Katherine's
operate the newsstand Katherine. Supreme Court
on the same terms that he had with
found that this established 5
not enough because financially
did not demonstrate
that he had a as required was This
with the licensee,
by § 2-64(a) (12) (A). financially amounts dependent
Supreme Court reasoned on the license, without
not on the licensee.
to a distinction of this case. to an agreement provided
a difference operated
under the practical the newsstand
with the Ashleys,
who held the license. and he was with him,
The newsstand dependent
with his livelihood, their arrangement
on the Ashleys
which, as evidenced pure business
will, grew into more than a
relationship. complied stating with § 2-64 (a) (12) (8) by that "[ulpon receipt of the
Second, petitioner submitting license, an affidavit
of said newsstand
would be my principal
with Section 20-229 of the If I am licensed to operate the
Code of New York.
by the Department, employment
of the Newsstand
as long as I am so-licensed." "is a person to whom the grant of such as required by
license would be in the interests
2-64 (a) (12) (C).
since 1987 and it is the source of his livelihood. with Katherine
Based on his understanding
that he would continue
in or about $55,000.
rebuilt it at a cost of approximately died, in recognition newsstand expressed of petitioner's
When Katherine efforts at the she
and their "warm, trusting her wish that petitioner argues
and loving relationship," continue the franchise. was
Respondent rational because under-the-table
that the denial of the app~ication participated in an unlawful
under which he rented the newsstand fraudulent renewal applications did not sign
from the licensees, to DCA over a period those applications
who submitted of years.
has not shown that petitioner
was aware that he was violating the licensees
any laws or rules when he paid the newsstand. Indeed, the and
$75 per week to operate
record shows that petitioner was recognized In published
in the neighborhood and his blog.
as its operator,
In light of the foregoing, a prescriptive
did not have in his name was an
right to the renewal of the license
under 6 RCNY § 2-64(a) (12), the denial of his application
that shocks the judicial of the business of more than 20
given that it will deprive petitioner built up over a period
that he has painstakingly years.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: APRIL 26, 2012