IN RE: BROOKLYN VAPORIUM (2025)

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Department of Consumer Affairs dated August 8, 2018, which denied the petitioner's application for a license to do business as an electronic cigarette retail dealer, the petitioner appeals from a judgment of the Supreme Court, Kings County (Katherine A. Levine, J.), dated March 30, 2022.  The judgment, insofar as appealed from, denied the petition and, in effect, dismissed the proceeding.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

In August 2018, the petitioner commenced this proceeding pursuant to CPLR article 78 to annul a determination dated August 8, 2018, of the New York City Department of Consumer Affairs (hereinafter the Department), which denied the petitioner's application for a license to do business as an electronic cigarette retail dealer (hereinafter an e-cigarette dealer's license).  The Department filed an answer.  In a judgment dated March 30, 2022, the Supreme Court, inter alia, denied the petition and, in effect, dismissed the proceeding.  The petitioner appeals.  We affirm.

Judicial review of an administrative decision “pursuant to CPLR article 78 ‘is limited ․ to a determination of whether the administrative decision is arbitrary and capricious, or lacks a rational basis’ ” (Matter of O'Hagan v. City of New York, 226 A.D.3d 1026, 1027, 211 N.Y.S.3d 119, quoting Matter of Claudia E. v. Ryan, 61 A.D.3d 865, 865, 877 N.Y.S.2d 414;  see CPLR 7803[3];  Akpan v. Koch, 75 N.Y.2d 561, 570, 555 N.Y.S.2d 16, 554 N.E.2d 53).  “ ‘Under this standard, a determination should not be disturbed unless the record shows that the agency's action was arbitrary, unreasonable, irrational or indicative of bad faith’ ” (Matter of Gibson v. Commissioner of the N.Y. State Dept. of Motor Vehs., 223 A.D.3d 667, 668, 203 N.Y.S.3d 627 [internal quotation marks omitted], quoting Matter of Halperin v. City of New Rochelle, 24 A.D.3d 768, 770, 809 N.Y.S.2d 98;  see Matter of Cowan v. Kern, 41 N.Y.2d 591, 599, 394 N.Y.S.2d 579, 363 N.E.2d 305).  “ ‘An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts’ ” (Matter of O'Hagan v. City of New York, 226 A.D.3d at 1027, 211 N.Y.S.3d 119, quoting Matter of Deerpark Farms, LLC v. Agricultural & Farmland Protection Bd. of Orange County, 70 A.D.3d 1037, 1038, 896 N.Y.S.2d 126;  see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321).  “ ‘A determination is rational where it has some objective factual basis, as opposed to resting entirely on subjective considerations’ ” (Matter of Gibson v. Commissioner of the N.Y. State Dept. of Motor Vehs., 223 A.D.3d at 668, 203 N.Y.S.3d 627 [internal quotation marks omitted], quoting Matter of Gorecki v. New York State Dept. of Motor Vehs., 201 A.D.3d 802, 803, 162 N.Y.S.3d 85;  see Matter of Halperin v. City of New Rochelle, 24 A.D.3d at 772, 809 N.Y.S.2d 98).

Here, contrary to the petitioner's contention, the Department's determination to deny the petitioner's application for an e-cigarette dealer's license was not arbitrary and capricious and was supported by a rational basis in the record (see Matter of Peckham v. Calogero, 12 N.Y.3d 424, 431, 883 N.Y.S.2d 751, 911 N.E.2d 813;  Matter of Gibson v. Commissioner of the N.Y. State Dept. of Motor Vehs., 223 A.D.3d at 668, 203 N.Y.S.3d 627).

DUFFY, J.P., MILLER, LANDICINO and HOM, JJ., concur.