State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 20, 2014 518078 

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In the Matter of IRVING

GERARD,

Petitioner,

v MEMORANDUM AND JUDGMENT

RICHARD M. KOWEEK, as 

Judge of the County Court 

of Columbia County,

Respondent.

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Calendar Date: October 17, 2014

Before: Stein, J.P., McCarthy, Garry, Lynch and Devine, JJ.

__________

Tabner, Ryan & Keniry LLP, Albany (Dana Salazar of

counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Paul

Groenwegen of counsel), for respondent.

__________

Stein, J.P.

Proceeding pursuant to CPLR article 78 (initiated in this

Court pursuant to CPLR 506 [b] [1]) to review a determination of

respondent which denied petitioner's application for a carry and

conceal pistol permit.

Petitioner's pistol permit was permanently revoked by

Surrogate's Court (Czajka, S.) in January 2003 as a result of a

series of threatening comments he made to a group of
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individuals.1 In May 2013, petitioner filed a new application

for a pistol permit, which respondent denied. Petitioner

thereafter commenced this proceeding to review respondent's

determination which, for the reasons that follow, we annul.

Respondent denied petitioner's pistol permit application

based upon Penal Law § 400.00 (1) (k) (formerly Penal Law §

400.00 [1] [e]), finding that petitioner was ineligible for a

pistol permit because of the prior revocation of his permit. 

Penal Law § 400.00 (1) (k) provides that no permit may be issued

to an individual "who has [] had a license revoked or who is []

under a suspension or ineligibility order issued pursuant to the

provisions of [CPL] 530.14 . . . or [Family Ct Act § 842-a]." 

Respondent interpreted this statute as two separate clauses and 

automatically barred petitioner from being issued a permit

because his license had previously been revoked, despite the fact

that the revocation was unrelated to either CPL 530.14 or Family

Ct Act § 842-a. 

We agree with petitioner that this was erroneous, as our

reading of the statute indicates that the bar to issuance of a

pistol permit "applies only in conjunction with the application

of the Criminal Procedure Law and Family Court Act sections cited

therein, which deal with orders of protection, and provides that

a person who has previously had a firearms license revoked

pursuant to those sections is ineligible to hold such a license"

(Matter of Romanoff v Kelly, 23 AD3d 212, 212 [2005]; see Matter

of Fauntleroy v Kelly, 4 Misc 3d 1014[A], 2004 NY Slip Op

50875[U] [Sup Ct, NY County 2004]). Even if Penal Law § 400.00

(1) (k) is subject to multiple interpretations, the legislative

history of the 1996 amendment to that statute makes it clear that

the provision in question was intended to protect victims of

domestic violence from individuals who have orders of protection

issued against them (see Sponsor's Mem, Bill Jacket, L 1996, ch

644). We can find nothing in the legislative history that would

support a reading of the statute as two separate clauses. Here,

inasmuch as the prior revocation of petitioner's pistol permit

1 This Court confirmed such revocation (Matter of Gerard v

Czajka, 307 AD2d 633 [2003]).
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was unrelated to either of the enumerated statutes, it did not

bar his eligibility to apply for a new permit. 

Although the revocation of petitioner's pistol permit and

the reasons therefor unquestionably could have some bearing on

whether there is "good cause" to deny his current application

(Penal Law § 400.00 [1] [n]), respondent's denial of the

application was based, not on a finding of "good cause" but,

rather, upon respondent's misinterpretation of Penal Law § 400

(1) (k). Accordingly, the determination must be annulled and the

matter remitted to respondent for further proceedings on

petitioner's pistol permit application.

McCarthy, Garry, Lynch and Devine, JJ., concur.

ADJUDGED that the determination is annulled, without costs,

petition granted, and matter remitted to respondent for further

proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court