Matter of Esperon v. Kelly

125 A.D.3d 460, 3 N.Y.S.3d 343

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 2015
• Docket: 14170 104221/12
• Status: Published

Opinion

Determination of respondent Police Commissioner, dated March 25, 2013, which revoked petitioner’s premises-residence handgun license, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Donna M. Mills, J.], entered Aug. 8, 2013), dismissed, without costs.

Respondent’s determination adopting the recommendation of an Administrative Hearing Officer is supported by substantial evidence (see Matter of Perlov v Kelly, 21 AD3d 270 [1st Dept 2005]), and there exists no basis upon which to disturb the credibility determinations made by the Hearing Officer (see generally Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]). To the extent that petitioner frames his arguments as constitutional claims that his rights under the Second Amendment were violated, they are unpreserved; such arguments were not advanced at the agency level (see Matter of Health Tea Corp. v New York City Loft Bd., 162 AD2d 152, 153 [1st Dept 1990]). In any event, these arguments are unavailing.

Concur — Tom, J.P., Friedman, Andrias, DeGrasse and Gische, JJ.