IN RE: Werner S. Graefe (2011)

Submitted—May 24, 2011

DECISION, ORDER & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Robert K. Holdman, a Judge of the County Court, Westchester County, entered October 13, 2010, which, without a hearing, revoked the petitioner's pistol license.   Motion by the respondent County of Westchester to dismiss the petition for failure to state a cause of action insofar as asserted against it.

ORDERED that the motion is granted;  and it is further,

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits;  and it is further,

ORDERED that one bill of costs is awarded to the respondents.

Contrary to the petitioner's contention, Penal Law § 400.00(11) authorized the respondent Robert K. Holdman (hereinafter the respondent), as a Judge of the County Court, to revoke the petitioner's license to possess a pistol or revolver, even in the absence of any proof that such license had been automatically revoked as a result of the petitioner's conviction of a felony or serious offense (see Matter of Dorsey v. Teresi, 26 AD3d 635, 636;  Matter of Peterson v. Kavanagh, 21 AD3d 617, 617–618;  Matter of Biganini v. Gallagher, 293 A.D.2d 603, 603–604;  Matter of Romanoff v. Lange, 281 A.D.2d 551, 551–552;  Matter of Porter v. Kelly, 272 A.D.2d 333, 333;  Matter of Moulton v. City of New York, 271 A.D.2d 337, 337;  Matter of Davi v. Cosgrove, 211 A.D.2d 788, 788–789;  Matter of Marlow v. Buckley, 105 A.D.2d 1160, 1160).   Moreover, the evidence credited by the respondent supports the conclusion that the petitioner does not possess the moral character or temperament necessary to possess a firearm.   Thus, the respondent's determination to revoke the petitioner's firearm license had a rational basis and was not arbitrary or capricious (see Matter of Hassig v. Nicandri, 2 AD3d 1118, 1119;  Matter of Panaro [County of Westchester ], 250 A.D.2d 616, 616;  see also Matter of Saccoccio v. Lange, 194 A.D.2d 794, 794–795;  Matter of County of Westchester v D'Ambrosio, 244 A.D.2d 334, 334).

The County of Westchester and the Attorney General of the State of New York are not proper parties to this proceeding (see Matter of Romanoff v. Lange, 281 A.D.2d 551, 552;  Penal Law § 265.00[10], 400.00[1], [3], [10] ).

The parties' remaining contentions are without merit or not properly before this Court.

DILLON, J.P., BALKIN, BELEN and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court