DE ILLY v. KELLY

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

Tim DE ILLY, Petitioner-Appellant, v. Raymond KELLY, etc., Respondent-Respondent.

Decided: April 08, 2004

NARDELLI, J.P., SULLIVAN, WILLIAMS, FRIEDMAN, MARLOW, JJ. Robert P. Firriolo, for Petitioner-Appellant. Edward F.X. Hart, for Respondent-Respondent.

Order and judgment (one paper), Supreme Court, New York County (Paula Omansky, J.), entered March 11, 2003, which granted respondent's cross motion to dismiss the petition brought pursuant to CPLR article 78 challenging respondent's authority to replace the category of firearm target license with a premises license with target-shooting endorsement, unanimously affirmed, without costs.

The new premises license, issued pursuant to 38 RCNY § 5-23(a), effective June 2001, permits the transport of firearms to authorized target ranges and hunting areas.   Respondent neither exceeded his jurisdiction (CPLR 7803[2] ) nor violated State law (CPLR 7803[3] ) in promulgating these new licensing regulations and procedures.   Petitioner failed to show that the State's enabling statute (Penal Law § 400.00) has preempted any and all local regulation in this field (compare Matter of Cohen v. Board of Appeals of the Vill. of Saddle Rock, 100 N.Y.2d 395, 764 N.Y.S.2d 64, 795 N.E.2d 619).   Furthermore, petitioner has not demonstrated how he is aggrieved by the local rule, inasmuch as it permits conduct restricted by State law.   Although a premises license under § 400.00(2)(a) limits possession to that licensee's dwelling, we do not view respondent's expansion of that right, to allow transport of such arms to authorized target ranges and hunting areas for proficiency enhancement and recreation, as supplanting the statute, but merely supplementing it (see Jancyn Mfg. Corp. v. County of Suffolk, 71 N.Y.2d 91, 97, 524 N.Y.S.2d 8, 518 N.E.2d 903;  see also People v. Ortiz, 125 Misc.2d 318, 479 N.Y.S.2d 613).