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Matter of Farrell v Kelly 2007 NY Slip Op 33454(U) October 16, 2007 Supreme Court, New York County Docket Number: 0106021/2007 Judge: Kibbie F. Payne Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT OF THE STATE OF PRESENT:

t(IBBlE F. PAYNE
Justice

i

EW YQRK - NEW YORK COUNTY
PART 4,

In the Matter of the Application of TREVOR FARRELL, Petltloner, Fpr and Order pursuant t o Article 78 of the New York Civil Practice Law and Rulee, -vMOTION SEQ. NO.

INDEX NO.
MOTION DATE

106,021 /07
8117/Q7

001

RAYMOND KELLY, as Statutorlly Designated Hahdgun Llcenslng Officer, and a8 the Police Commlsslonsr of the City Of New York, and Hie Succeaaoro In Offlce,

MOTION CAL. NO.
Reapondents.

The followlng papera, numbered 1 t o

were read on this motion to/for
-FRED

Notlce of Motion/ Order t o Show Cause - Affldavlts - Exhibits Answering Affldavlts - Exhlblts Replying Affidavits

,..

Cross-Motion:

c

Yes

Upon the foregoing papera, It la ordered that petitloner'ar appllcatim to annul the deterrnlnatlon of the New York Clty PollGe Department, License Dlvlslon Is granted as indicated in the attached memorandum.

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : IAS PART 4
In the Matter of the Application of TREVOR FARRELL,

Index No. Motion Seq.
JUDGMENT

106021/07

001

Petitioner, an Judgment Pursuant to Article 78 of the Civil Practice Law,
For

- against -

RAYMOND KELLY, as the Statutorily Designated Handgun Licensing Officer, and as the Police Commissioner of the City of New York, and His Successors in Office,

KIBBIE E'. PAYNE, J.:

In this CPLR article 78 proceeding, petitioner seeks a judgment annulling the determination of the New York City Police Department, License Division that denied him a carry guard pistol license.' Respondent opposes the application, arguing that the determination is rational, not arbitrary or capricious.

A carry guard license is "valid when the holder is

actually engaged in a work assignment as a security guard or gun custodian" (Handgun Licenses [38 RCNY] 5 5-01 [ d l ) . "This license is restricted to the days and hours that the licensee is actually engaged in employment, or when a licensee is travelling from her/his residence to employment, or from employment to her/his residence. . . . This means that the handgun may be carried only when the licensee is actually engaged in employment by the security company the name of which appears on the face of the license. This does not permit `freelancing' on the licensee's day off . . (Handgun Licenses [38 RCNY] 5 5-24 [bl [I11
.I`

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Petitioner is an employee of non-party Brink's, Inc. (Brink's),working as an unarmed security guard. Petitioner

submitted an application f o r a carry guard license to the New York City Police Department, License Division (License Division). Among other things, petitioner disclosed that he was previously arrested for an offense other than a parking violation. The application provided that, when not in use, the handgun would be safeguarded in a gun locker on his employee's premises. The gun

custodian at Brink's submitted a letter to the License Division, which stated that it was necessary for petitioner to carry a firearm because his "duties will include working as a courier clerk and Armored Guard . .

. .

I,

2

The letter further provided

that Brink's 'assumesresponsibility of the disposition of the pistol and return of the license to the License Division when the applicant's business or employment is terminated for any reason." Upon receiving the application, the License Division performed a background check on petitioner. The License Division discovered that petitioner was arrested on July 7, 2001 and May

\Oncea company employs and intends to arm additional employees, [the company shall designate1 a gun custodian and alternate custodian . . . (Handgun Licenses [ 3 8 RCNY 51 5-24 [a] [ll). The gun custodian has several responsibilities, including submitting certain reports to the License Division concerning the licensee's employment record and the company's handgun inventory (-see 38 RCNY

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