| Matter of Andrew Naclerio Assoc., Inc. v Pradhan |
| 2007 NY Slip Op 08451 [45 AD3d 585] |
| November 7, 2007 |
| Appellate Division, Second Department |
| In the Matter of Andrew Naclerio Associates, Inc., et al.,Petitioners, v V.J. Pradhan et al., Respondents. |
—[*1] Patricia Zugibe, County Attorney, New City, N.Y. (John L. Weslowski of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 to review a determination of the Appeal Panel of theLegislature of the County of Rockland, sued herein as V.J. Pradhan, Gerold M. Bierker, andKenneth P. Zebrowski, dated December 8, 2005, which, after a hearing, confirmed a decision ofthe Home Improvement Licensing Board of the County of Rockland dated October 25, 2004,revoking, after a hearing, the license issued to Andrew Naclerio Associates, Inc.
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits,with costs.
The petitioner Andrew Naclerio (hereinafter Naclerio) is the president of Andrew NaclerioEnterprises, Inc., doing business as Astoria Gardens (hereinafter Enterprises), which obtained alicense to operate a home improvement business from the Office of Consumer Protection of theCounty of Rockland. Naclerio thereafter obtained a second license from that agency on behalf ofthe petitioner Andrew Naclerio Associates, Inc., which also did business under the name ofAstoria Gardens (hereinafter Associates). During the pendency of the renewal application forAssociates' license, Naclerio received a written notice that the Home Improvement LicensingBoard of the County of Rockland (hereinafter the Board) had scheduled a public hearing toconsider the revocation and/or suspension of Associates' license because there was anoutstanding judgment against Enterprises, whose license had expired. The Board determined torevoke Associates' license based on additional charges raised during the hearing. Upon a de novohearing, the Appeal Panel of the Legislature of [*2]the County ofRockland, sued herein as V.J. Pradhan, Gerold M. Bierker, and Kenneth P. Zebrowski(hereinafter the Panel), confirmed the Board's determination, concluding that "[t]he various actsand omissions in this case, including failing to follow through on Associates' agreement with theDepartment of Consumer Protection for it to assume Enterprises' obligations, its refusal throughMr. Naclerio to provide documentation of any sort to the Board or the Panel, and Mr. Naclerio'sinsistence that he did nothing wrong, make him an unqualified candidate for licensure." Weconfirm the Panel's determination.
Judicial review of an administrative determination made after a hearing required by law, andat which evidence was taken, is limited to whether that determination is supported by substantialevidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176,179 [1978]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns ofScarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]; Matter of Torhan v Landi, 39 AD3d657 [2007]).
Substantial evidence has been defined as "such relevant proof as a reasonable mind mayaccept as adequate to support a conclusion or ultimate fact" (Matter of Miller v DeBuono,90 NY2d 783, 793 [1997], quoting 300 Gramatan Ave. Assoc. v State Div. of HumanRights, 45 NY2d at 180). The "concept of substantial evidence" is "related to the charge orcontroversy and involves a weighing of the quality and quantity of the proof . . .More than seeming or imaginary, it is less than a preponderance of the evidence, overwhelmingevidence or evidence beyond a reasonable doubt" (300 Gramatan Ave. Assoc. v State Div. ofHuman Rights, 45 NY2d at 180-181; see also CPLR 7803 [4]; Matter of Pell vBoard of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck,Westchester County, 34 NY2d at 231).
Here, the determination to revoke the home improvement license of Associates is supportedby substantial evidence (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 [1974]; Matter of BiCounty Brokerage S. Corp. vState of N.Y. Ins. Dept., 4 AD3d 470 [2004]; Matter of Maneri v New York StateDept. of State, 240 AD2d 748 [1997]). In its determination dated December 8, 2005, thePanel found that Naclerio's testimony was not credible and that the Board presented more thansufficient evidence for the Panel to uphold the Board's decision to revoke Associates' license toconduct business in the County. The Panel found that Naclerio was not forthright about hisbusiness dealings conducted under the name of his other business, Enterprises, or its relationshipto Associates as a successor corporation. The Panel found that during the time Enterprises was inexistence, Naclerio exhibited a lack of regard for a number of its suppliers and customers. Onesuch supplier, Mohawk Materials (hereinafter Mohawk), obtained two judgments againstEnterprises. The Panel found that after Mohawk made several attempts to sue, Naclerio agreed tosubmit Enterprises to the court's jurisdiction, but never paid the judgments. The Panel also notedthat Naclerio was involved in other lawsuits commenced against Enterprises. In one case, acustomer sued, and her judgment ultimately had to be satisfied by a Sheriff's levy. The Panelstated that Enterprises was charged with and pleaded guilty to violations of Rockland County lawinsofar as it demanded excessive down payments from its customers, ignored the three-dayright-to-cancel notice contained in its contracts, and unlawfully conducted business under a nameother than that pursuant to which it was licensed. Enterprises received a reduced penalty inanother matter, then failed to pay, resulting in an increase to full penalty. The Panel found thatNaclerio made a deliberate attempt to change the corporation name from Enterprises toAssociates only for tax or liability purposes, noting that there was nothing done to give the publicnotice that Associates was not the same business as Enterprises. The Panel noted that, despitenumerous requests to produce financial documents for Enterprises, Naclerio never producedthem, claiming that they had never been requested or that he did not possess them. The [*3]Panel also stated that Naclerio refused to answer any questionsregarding Enterprises, and claimed that it was a separate entity, noting that Naclerio told theBoard that Enterprises was being dissolved. However, a review of the New York StateDepartment of State website listed it as an "active corporation." The Panel noted that a criminalcomplaint charged Naclerio personally with misdemeanors for deliberate nonpayment. The Panelfound that, after having heard and seen the witnesses, and carefully reviewing the evidence,Naclerio was an unqualified candidate for licensure.
The petitioners' remaining contentions are without merit. Ritter, J.P., Fisher, Dillon andDickerson, JJ., concur.