IN RE: Salvatore DiSANTO

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Salvatore DiSANTO, Petitioner-Appellant, v. Raymond KELLY, as Commissioner of the New York City Police Department, Respondent-Respondent.

Decided: October 20, 2005

BUCKLEY, P.J., MAZZARELLI, FRIEDMAN, MARLOW, ELLERIN, JJ. Charles A. Giulini, Jr., New York, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), for respondent.

Judgment (denominated an order), Supreme Court, New York County (Marcy S. Friedman, J.), entered April 6, 2004, which dismissed the petition brought pursuant to CPLR article 78 to annul respondent's determination denying petitioner's application for a handgun [carry] license, unanimously reversed, on the law, without costs, the petition granted, the determination annulled, and respondent directed to issue petitioner a handgun [carry] license.

The technical violation of the notification procedure at issue here, which we might find to be a valid basis to deny a carry permit under other circumstances, resulted in an utterly arbitrary and capricious determination, given the following factors clear in this record:  (1) petitioner's unblemished 15 years as a licensed carry permit holder;  (2) the exceptionally minor nature of the procedural violation under the specific facts of this case;  and (3) the fact that respondent correctly deemed petitioner fit to continue to be entrusted with a permit to retain his handgun at his business pursuant to his premises business license.   Respondent's additional basis for disapproval has been abandoned on appeal.