Petitioner Louis Atilano moved by Order to Show Cause in an Article 78 Petition seeking to nullify and invalidate the Certificate of Marriage Registration. Upon Petitioner's request, the Order to Show Cause was granted only to the extent of setting the matter down for a framed issue hearing as to Mr. Benny Hurtado's authority to solemnize the marriage; the location where the wedding took place; the wedding ceremony; the witnesses to the marriage; the facts concerning the completion of the Marriage License; and the Certificate of Marriage Registration. The framed issue hearing was held on December 10 and 17, 2012, and January 7, 8 and 10, 2013. After due deliberation of the evidence adduced at the hearing, the petition is denied for the reasons stated below and all stays are lifted.

At the hearing, the court heard testimony from the parties and their witnesses, Louis Atilano, Walter Curtis, Theresa Preston, Benny Hurtado and Patrick Synmoie and non-party witness Lino Moronta.

Mr. Louis Atilano and Ms. Deborah Gonzalez (collectively "the couple") were married on August 8, 2004, in Paterson, New Jersey in a ceremony that was officiated by Respondent Benny Hurtado, Ms. Gonzalez's friend and an ordained minister with the Living Word Community Church located at 179 Franklin Street, New York, New York. One of the witnesses to the wedding [*2]ceremony who signed the marriage license was Mr. Lino Moronta. The couple lived as husband and wife at Ms. Gonzalez's apartment in New York City. They celebrated their wedding anniversary in Puerto Rico every year. Mr. Atilano, an attorney, at all times maintained an office at 730 Grand Concourse, No.4F, Bronx, NY 10451. Prior to the wedding ceremony, the couple applied for and got a marriage license in the State of New York and elected that the marriage certificate should be mailed to Mr. Atilano's law office. The Affidavit And Application For A Marriage License indicated that 730 Grand Concourse, #4F, Bronx, NY 10451 wasthe address where the marriage certificate would be mailed.

The couple are in the process of getting a divorce. To that end, Mr. Atilano obtained a copy of the Certificate of Marriage Registration ("marriage certificate") from the City of New York, Office of the City Clerk, Marriage License Bureau ( "the Agency") on February 9, 2012, because he did not remember the date of his marriage and needed it to file for divorce. It was at that time he first observed that the marriage certificate indicated that the wedding ceremony took place at the Living Word Community Church located at 179 Franklin Street, New York, NY 10013 instead of Paterson, New Jersey. He denied ever seeing the marriage certificate prior to February 9, 2012, or having been told that there was a problem as to the location of the ceremony. He thereafter commenced this Article 78 Petition to have the marriage certificate nullified or invalidated.

Subsequent to the couple's wedding ceremony, the Agency sent a letter to Mr. Hurtado dated August 24, 2004, stating that while he was listed as the marriage officiant on the marriage license issued to the couple, their records do not show that he was registered with that office, as is required to perform wedding ceremonies in the City of New York. Mr. Hurtado completed a Marriage Officiant Registration on September 23, 2004. The Marriage Officiant Registration has handwritten entries on the top left which state "completed" "1-6-05" "73414."

The Agency sent another letter dated March 3, 2005, to Mr. Hurtado and copied to "Mr. & Mrs. Louis Atilano & Deborah Gonzalez, 730 Grand Concourse, #4F, Bronx, NY 10451," advising him that the marriage certificate could not be released because the wedding ceremony location was missing or incomplete on the marriage license. In response, two letters were sent to the Agency regarding the location of the wedding ceremony. One letter was written on stationery with the letterhead "Living Word Community Church" and states that the wedding ceremony took place in Paterson, New Jersey. The letter was signed and under the signature was the name "Mary Wyatt-Office Assistant Pastor Benny Hurtado." Another letter was written on stationery with the letterhead "Living Word Christian Counseling Center" and states that the wedding ceremony took place at the Living Word Community Church in New York City. That letter was signed and below the signature was typed "Pastor Benny Hurtado." Living Word Community Church and Living Word Christian Counseling Center are both located at 179 Franklin Street, New York, NY 10013. Mr. Hurtado admitted that his signature appeared on both letters.

The original marriage license which is maintained by New York City Office of the City Clerk shows that on the first line in the area entitled "CERTIFICATE OF OFFICIANT PERFORMING CEREMONY," a number next to words "Benny Hurtado" as the name of the officiant was covered by white-out and the #73414 was written after the word "Reverend." It also shows that, on the second line in the area for the location of the ceremony, the area is covered by white-out and written [*3]in is "Living Word Community Ch 179 Franklin St. NYC," and "NY" is written over an area with white -out.

Mr. Hurtado had no recollection of the wedding ceremony or anything related to obtaining the marriage certificate, but after looking at pictures admitted that he officiated the wedding and that it did not take place at Living Word Community Church in New York City. He acknowledge that he signed the marriage license, but denied that he filled out the part of the license which states that the location of the wedding ceremony was Living Word Community Church in New York City. The court finds his testimony to be incredible especially his loss of memory as to the wedding ceremony and the denial of taking any actions to change the location of the ceremony since he and Ms. Gonzalez were friends before the marriage and they have maintained said friendship to the present.

Additionally, Ms. Gonzalez became concerned about one to two months after her wedding ceremony as she had not received the marriage certificate and she contacted Mr. Hurtado. He told her that there was a problem with where the wedding ceremony was held because he could not perform a marriage in New Jersey but he would fix it. Since the location of the wedding ceremony was changed after he was contacted by the Agency and Ms. Gonzalez, coupled with Ms. Gonzalez's testimony that he said he would fix the problem with the marriage license, this Court finds that Mr. Hurtado, or someone at his directive, changed the location of the wedding ceremony by using white-out and then writing in "Living Word Community Ch 179 Franklin St. NYC, NY."

In May 2005, Mr. Hurtado called Ms. Gonzalez, she went to his office and he gave her the marriage certificate which bears the date May 2, 2005. She noticed that the certificate stated that the wedding ceremony took place at Living Word Community Church in New York City instead of New Jersey and later that day pointed it out to Mr. Atilano who said nothing. She kept the marriage certificate in her possession. The Court does not credit that portion of Ms. Gonzalez's testimony where she stated that she was unaware that the certificate would be changed to a location where the marriage ceremony did not occur, since she subsequently received a marriage certificate with said change and did or said nothing during the duration of her marriage to correct the misinformation on the certificate.

The practice of the New York City Office of the City Clerk, Marriage License Bureau, as testified to by Mr. Walter Curtis, a supervisor employed by the New York City Office of the City Clerk, was that when a marriage license is returned to that office, a clerk would review it and if it was deficient in any manner, a letter would be generated. A marriage certificate will not be released until the marriage license is fixed. In this case, Mr. Hurtado was not registered as a wedding officiant so a letter was sent to him regarding his registration. A second letter was sent regarding the location of the wedding ceremony. Both letters bore Mr. Curtis's signature.

The marriage license was returned to the Agency on August 11, 2004, as testified to by Ms. Teresa Preston, a supervisor employed by the Agency. It had white-out in the place where the location of the wedding ceremony took place, and pursuant to the policies of the Agency, a letter such as the one sent to Mr. Hurtado would have been generated asking for the location. In cases where the is conflicting information, such as this case, it would be taken to the attorney, Mr. Synmoie, and the head of the Agency for a decision.

The Agency accepted the letter stating that the wedding ceremony took place in New York. Its General Counsel, Mr. Patrick Synmoie, explained that in spite of the fact that the two letters sent [*4]to the Agency by Mr. Hurtado gave two different locations where the wedding ceremony took place, one had a signature and below the signature were the words "Pastor Benny Hurtado," as opposed to the other letter which had Mary Wyatt's name below the signature. The marriage license was finally entered into the New York City Office of the City Clerk's computer as completed on May 2, 2005.

CPLR § 217(1) provides that "a proceeding against a body or officer must be commenced

within four months after the determination to be reviewed becomes final and binding upon the petitioner." Where the party is entitled to written notice, the determination becomes final and binding when the aggrieved party receives notice of the determination. 90-92 Wadsworth Ave. Tenants Ass'n v. City of New York Dep't of Hous. Preservation & Dev., 227 AD2d 331, 656 N.Y.S.2d 8 (1st Dept. 1997); Metro. Museum Historic Dist. Coalition v. De Montebello, 20 AD3d 28, 796 N.Y.S.2d 64 (1st Dept. 2005). The evidence before the court is that in May 2005, Ms. Gonzalez obtained a copy of the marriage certificate bearing the date May 2, 2005, from Mr. Hurtado. Mr. Atilano testified that he did not receive or see a copy of the marriage certificate until February 9, 2012, thus challenging the expiration of the four-month statute of limitations. The court finds that Mr. Atilano should have known after May 5, 2005, but prior to February 9, 2012, that the marriage certificate bore the wrong address of the location of the wedding ceremony since it was in his home where he had access to review it. Mr. Atilano's decision not to look at his marriage certificate during the duration of his marriage cannot inur to his benefit. His request that the court declare the Agency's decision to issue a Certificate of Marriage Registration to the couple as invalid and a nullity is untimely because the four month statute of limitations time period expired before the petition was filed. Notwithstanding petitioner's untimely request, the court also finds that the Agency action to issue a Certificate of Marriage was rational and not arbitrary and capricious.

It is well settled that judicial review of an administrative agency's determination is limited to the issue of whether the determination had a rational basis or the action complained of was arbitrary and capricious. CPLR § 7803; Pell v. Board of Education, 34 NY2d 222, 232, 313 N.E.2d 321, 356 N.Y.S.2d 833 (1974). An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts, Id, at 34 NY2d at 231; Peckham v. Calogero, 12 NY3d 424, 911 N.E.2d 813, 883 N.Y.S.2d 751 (2009), or where the agency fails to adhere to its precedent without offering an explanation for the departure, even if there is substantial evidence to support its determination. Terrace Ct., LLC v. New York State Div. of Hous. & Community Renewal, 18 NY3d 446, 453, 963 N.E.2d 1250, 940 N.Y.S.2d 549 (2012); In re Charles A. Field Delivery Service, Inc., 66 NY2d 516, 517, 488 N.E.2d 1223, 498 N.Y.S.2d 111 (1985). Here, the actions taken by the Agency had a rational basis and were not arbitrary and capricious. Firstly, the Agency acted reasonably when it accepted the letter that had Mr. Hurtado's name below the signature, rather than Ms. Mary Wyatt's name, as the letter which stated the correct location where the wedding ceremony took place. Secondly, the Agency followed its own guideline to ensure that Mr. Hurtado was registered as a marriage officiant prior to registering the marriage license and issuing a marriage certificate. The fact that Mr. Hurtado officiated the wedding ceremony although he was not a registered officiant in New York City does not invalidate the marriage because he was a clergy at the time of the ceremony.

New York State Domestic Relations Law ("DRL") § 12 provides that a marriage is valid in the State of New York where "the parties must solemnly declare in the presence of a clergyman or magistrate and the attending witness or witnesses that they take each other as husband and wife. In [*5]every case, at least one witness beside the clergyman or magistrate must be present at the ceremony." DRL § 25 further provides that a marriage in the State of New York is not void because of the failure to obtain a marriage license. DRL § 11 provides that persons who are authorized to perform marriage ceremonies in New York State shall register with the city clerk. Failure to register with the New York City Office of the City Clerk prior to performing a wedding ceremony does not render the marriage void. Persad v. Balram, 187 Misc 2d 711, 714, 724 N.Y.S.2d 560 ( Sup. Ct., Queens County 2001). Here, while Mr. Hurtado was not registered with the New York City Office of the City Clerk prior to performing the couple's wedding ceremony, the marriage is not void or invalid.

In a similar case, the Court in Matter of Farraj, 72 AD3d 1082, 900 N.Y.S.2d 340 (2d Dept. 2010) held that a marriage that was solemnized in New Jersey in the presence of a clergy and a witness, but without a New York State marriage license was a valid marriage in the State of New York as the domicile of the marriage was in New York. Here, the marriage is valid as it was solemnized in New Jersey in the presence Mr. Hurtado, a clergy ordained by the Living Word Community Church, before two witness and the couple lived in New York. Contrary to Mr. Atilano's theory, the fact that the wedding ceremony took place in New Jersey, the New York marriage license had the incorrect location of the wedding, and that Mr. Hurtado was not a registered marriage officiant in the State of New York on the day of the wedding ceremony, singularly or in totality, do not render the marriage invalid. The action by New York City Office of the City Clerk was to ensure that the couple's intent to be married was fulfilled.

Accordingly, the court finds that the Petition is untimely, as the four month statute of limitations to challenge the Agency's action expired before the petition was filed. Even if the application was timely, dismissal is still warranted since the action of the Agency was rational and not arbitrary and capricious; and that lack of the officiant's registration at the time of officiating the wedding ceremony did not invalidate the marriage. It is hereby

ORDERED AND ADJUDGED, that the Article 78 petition seeking to nullify and invalidate the Certificate of Marriage Registration is dismissed, and that any and all stays imposed by this Court are lifted.

Dated:March, 2013_____________________________

SHARON A. M. AARONS, J.S.C.