Novick v. Hillery

Appeal (transferred to this court by order of the Appellate Division, Second Department) from a judgment of the Supreme Court (King, J.), entered May 7, 1991 in Dutchess County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner’s application for a pistol permit.

Petitioner commenced this CPLR article 78 proceeding to annul respondent’s determination denying his application for a pistol permit, claiming that it was arbitrary and capricious. The requirement of Penal Law § 400.00 (4-a) notwithstanding, petitioner was not notified of the reasons for disapproval of his application until the reasons were revealed in respondent’s affirmation furnished in answer to the petition. Supreme Court’s denial of the instant petition prompted this appeal.

We agree with Supreme Court that the reasons for disapproval, i.e., (1) that in 1984 petitioner was convicted upon his plea of driving while ability impaired, and (2) that one of his character witnesses had not been informed of that conviction before completing the character reference form, establish "good cause” (see, Matter of Marlow v Buckley, 105 AD2d 1160, 1161) and provide a reviewable record for respondent’s decision (cf., Matter of Davis v Clyne, 56 AD2d 692). The fact *1008remains, however, that petitioner was not afforded an opportunity to respond thereto prior to his application being denied (see, Matter of Lukovic v Cahill, 130 AD2d 751, 752; Matter of Savitch v Lange, 114 AD2d 372, 373; Matter of Bobrick v Leggett, 71 AD2d 869, 870; Matter of Guida v Dier, 54 AD2d 86). Petitioner is to be provided that opportunity and respondent shall thereafter issue a new determination.

Weiss, P. J., Mikoll and Crew III, JJ., concur. Ordered that the judgment is reversed, on the law, with costs, petition granted to the extent that the determination is annulled and matter remitted to the County Court of Dutchess County to provide petitioner with a reasonable opportunity to respond to the objections to his application.