        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

890
OP 13-00223
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF CHRISTIAN CURTS, PETITIONER,

                    V                               MEMORANDUM AND ORDER

HON. DOUGLAS A. RANDALL, JUDGE, COUNTY OF MONROE,
RESPONDENT.


GALLO & IACOVANGELO, LLP, ROCHESTER (DAVID D. SPOTO OF COUNSEL), FOR
PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (initiated in the
Appellate Division of the Supreme Court in the Fourth Judicial
Department pursuant to CPLR 506 [b] [1]) to annul a determination of
respondent. The determination revoked the pistol permit of
petitioner.

     It is hereby ORDERED that the determination is unanimously
annulled on the law without costs and the petition is granted.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination, after a hearing, revoking his
pistol permit. Respondent initially temporarily suspended
petitioner’s pistol permit after petitioner was arrested for menacing
in the second degree (see Penal Law § 120.14 [1]). Petitioner was
subsequently acquitted of the menacing charge, but respondent
nevertheless permanently revoked the permit. We agree with petitioner
that the determination is arbitrary and capricious, and constitutes an
abuse of discretion inasmuch as the record from the hearing is devoid
of any evidence upon which respondent could have based his
determination (see Matter of Papaioannou v Kelly, 14 AD3d 459, 460;
see generally Matter of Jennings v New York State Off. of Mental
Health, 90 NY2d 227, 240). We further agree with petitioner that his
due process rights were violated inasmuch as the record from the
hearing does not demonstrate that he was afforded the opportunity to
review the alleged documentation upon which respondent based his
determination (see LaGrange v Bruhn, 276 AD2d 974, 975). We therefore
annul the determination. We note, however, that our determination
does not preclude the commencement of a new revocation proceeding (see
                                 -2-                          890
                                                        OP 13-00223

Matter of Demchik v Hannigan, 182 AD2d 1133, 1133).




Entered:   October 4, 2013                     Frances E. Cafarell
                                               Clerk of the Court
