Last month I met Jerry Delakas’s lawyer, Gil Santamarina and I talked to him about my project and asked him to clarify some points of this story that seemed dark to me.
He has been cooperative and kind, explaining me everything. He gave me the previous record on appeal where I could unravel some aspects, and the copy of his brief for petitioner-appellant in support of his appeal from following Decision and Order of Honorable Cynthia S. Kern that will be discussed in few months in New York Supreme Court.
Now, everybody can have an idea about the justification of the previous Decision and Order of March 21, 2011, in this post
About last appeal… one side of the story.
I am here to show through this documentation what has been omitted and not totally considered.
The side of Jerry story not fully took into consideration and fully respected.
I want to thank Gil Santamarina to let me have all further information that now I have the chance to share with all of you.
In the DCA Denial Letter, Determination dated January 6, 2011, Appellant’s application for a renewal of a license to operate the existing newsstand located at the northwest corner of Astor Place and Lafayette Street was refused.
This happened although the Appellant has established what they asked:
A) that he is a “one-time employee of the former licensee” or in the alternative, “he has demonstrated that he had a pre-existing, established relationship to the former licensee that included financial dependence on the licensee“. (R. at 19)
B) The operation of the Newsstand has been Appellant’s principal employment for almost a quarter of a century.
C) there is also an interest of fairness that should be considered and that should grant the license to Jerry Delakas.
The lower Court found “rational basis” in the denial although there is not.
1) Appellant Jerry Delakas has operated the Newsstand continuously and without interruption 6 days a week 12 hours a day since 1987, approximately 24 years.
2) The operation of the Newsstand is Jerry’s primary employment.
3) He is dependent on the income generated from the Newsstand for his livelihood. Jerry takes also care about Aris, his only brother who is affected by mental problems.
4) The license to operate the Newsstand was originally issued in the name of Stella Schwartz, and then Katherine Ashley, now deceased. Jerry and licensee holders agreed that he would operate the Newsstand in exchange for a weekly fee of $75,00, which he has duly paid since 1987, with the understanding that he would remain the operator of the Newsstand indefinitely and that upon her death, the license would pass him.
Jerry has been paying his taxes all these years and never tried to be disrespectful of his community or of the U.S.A. Government.
5) In reliance upon this long-standing arrangement, in 1993, Jerry rebuilt the Newsstand out of his own funds, to fit the new standard the law requested, at the cost of approximately $55,000.00 with the understanding that he would continue to operate the Newsstand indefinitely.
6) When Mrs. Ashley died in 2006, her will bequeathed to Jerry her interest in the Newsstand so that Jerry could continue in his capacity as operator of the Newsstand after her death and succeed her as franchisee.
Reporting Article Seven of the Will:
” For many years, the day-to-day operation of the Newsstand has been conducted diligently by JERRY DELAKAS (…) with whom I have developed a warm, trusting, and loving relationship. It is my wish that JERRY DELAKAS continue in his capacity as day-to-day operator of the Newsstand after my demise and, if possible, to succeed me as franchisee.”
But they say there is not a sufficient proof of a pre-existing, established relationship to the former licensee that included financial dependence on the licensee.
7) Jerry received notice of this bequest by way of a probate notice on or about August 6, 2006, which informed him that the notice did “not require any action on his part”.
So Jerry didn’t do anything of course.
8) For reasons unknown to Jerry, or anyone, on December 11, 2008, the license to operate the Newsstand was reissued by DCA in the name of Sheldon Ashley, Mrs. Katherine Ashley’s husband.
9) So as was the arrangement with Katherine Ashley, Jerry continued to pay Sheldon Ashley $75,00 a week in order to operate the Newsstand.
10) Upon information and belief, based upon correspondence with Ms. Ashley’s attorney, Mr. Ashley took no action with regard to transferring the Newsstand franchise to Jerry, although this was clearly Katherine’s intent as set forth in her will.
Obviously Jerry never asked Mr. Sheldon Ashley to do what was written in his wife’s will. It was supposed to be Sheldon’s responsibility and care.
So simply Jerry’s arrangement with Mrs. and Mr Ashley remained in effect and Jerry continued to operate the Newsstand and pay the $75,00 a week.
Just some steps back to clarify the procedural history and decisions.
- On or about September 20, 2010: the Estate applied for a renewal of the license, duly filing the Renewal License Application and paying the fee of $ 1,076.00, the intention being to permit Jerry to be able to continue to operate under said license as he has since 1987. (R. at 36).
- On or about September 24, 2010, the Estate received notice from Appellee by mail, stating that the Estate could not be granted a license, because under section 20-229 of the New York City Administrative Code, the DCA may only issue a license to persons operating such franchises as their principal employment and an “estate of a deceased cannot maintain employment.”
The letter, lengthy in comparison to that received by Jerry, advised that “rules promulgated by Commissioner of Consumer Affairs do authorize the Commissioner, at his discretion, to transfer a newsstand license to a dependent in the event of a death of licensee.” (R. at 40.)
- On or about December 6, 2010, Jerry filed a Renewal License Application to operate the existing Newsstand and to have title to the license issued in his name under 6 RCNY 2-64 (a)(12), which states:
Death or disability of licensee. At the discretion of the Commissioner or his or her designee, upon the death or permanent disability of the person who was licensed to operate a newsstand at a location, DCA may accept an application for a license to operate such existing newsstand where:
A) The applicant is a dependent spouse, dependent domestic partner, dependent child or one-time employee of the former licensee, or bears another pre-existing, established relationship to such former licensee that included financial dependence on such license;
B) the applicant demonstrates to DCA that the operation of such newsstand will be his or her principal employment; and
C) the applicant is a person to whom the grant of such license would be in the interest of fairness. The Commissioner may grant a license to such an applicant who meets the burden of demonstrating to operate such an existing newsstand where the conditions in this paragraph (12) have been met, the applicable license and application fees have been paid, the New York certification of authority to collect New York sales tax has been provided, and the newsstand, and the newsstand meets all other applicable requirements of this Part including, but not limited to, a qualifying inspection by DOT.
- January 6, 2011 Jerry’ request was denied from Juan Orozco, Jr.; Director of Licensing for Appellee.
” (…) Your request for a license to operate the existing newsstand at the northwest corner of Lafayette Street and Astor Place last licensed to Sheldon Ashley under license No. 1243058 is denied. You have not demonstrated that the Department should exercise discretion to issue a license to (Appellant) under 2-64 (a)(12) of Title 6 of the Rules of the City of New York, the applicable provision.”
No explanation was offered in denying Jerry’s application for the license, despite Jerry’ clear demonstration as required under 6 RCNY 2-64(a)(12).
As I showed before:
A) (…) that he is a one-time employee of the former licensee, or in the alternative has a pre-existing, established relationship, which included financial dependence on such license,
B) that the operation of the Newsstand constituted Appellant’s principal employment, and
C) that issuance of the license, given Appellant’s investments of resources, time and energy over almost a quarter of a century, is “in interest of fairness.”
After the denial letter Jerry brought the Article 78 petition of CPLR to the Supreme Court, County of New York.
- December 6, 2010 Jerry provided a copy of his application to the Lower Court in support of the Article 78 petition.
The Lower Court denied Jerry’s petition.
- On or about August 13, 2011, Jerry appealed the Lower Court’s decision to the Appellate Division of the Supreme Court of the State of New York, New York County.
Which is the basis of action?
The DCA improperly denied Appellant’s Renewal License Application and would have to permit him to continue to operate the existing Newsstand a she had for the previous 25 years and to have title to the license issued in his name under RCNY 2-64 (a)(12).
Now the point is that:
Courts have the power to overturn the decision of an administrative tribunal when there is “no rational basis for the exercise of discretion or the action complained of is arbitrary and capricious”. (See Pee v. Bd. of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Wetchester County, 1974).
Courts have power to determine whether an administrative agency acted arbitrarily and capriciously by testing whether a particular action is without foundation in fact.
“An action is arbitrary if without sound basis in reason and is generally taken without regards to the facts.” And,“Rational basis exists where the administrative determination is supported by substantial evidence”.
It’s defined ”substantial evidence, such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact, it does not rise from bare surmise, conjecture, speculation or rumor” (Id. Goldstein v. Lewis).
There is not substantial evidence to refuse Jerry’s request according to the evidences he had to provide to the DCA.