The following papers numbered 1 to 3 read on this motion:Papers Numbered:

Notice of Petition/Verified Petition/Affidavits (Affirmations)___1

Verified Answer and Affidavits (Affirmations)2

Memorandum of Law __________________________________3

_____________________________________________________________ ___________

In this CPLR Article 78 proceeding, pro se petitioners, ADRIAN STRAKER,

CARL STRAKER and FRIENDS OF ADRIAN STRAKER (collectively "STRAKER"), seek an order to set aside respondent NEW YORK CITY CAMPAIGN FINANCE BOARD ("CFB") June 22, 2012 final determination denying STRAKER'S petition, pursuant to Title 52 of the Rules of the City of New York (RCNY) § 5-02 (a), challenging CFB's April 12, 2012 determination that STRAKER owes $21,926.00 in public funds granted to STRAKER, because ADRIAN STRAKER, a participating candidate in CFB's Campaign Finance Program in the 2009 City Council election, failed to adequately document campaign expenses for that amount. CFB counterclaims for a judgment against STRAKER for $21,926.00, plus interest from May 29, 2012, and an award of fees, costs and disbursements for this proceeding. For the reasons to follow, STRAKER's petition is denied for failure to properly qualify campaign expenses, pursuant to Title 3 of the New York City Administrative Code (AC) § 3-710 (2) (b) and 52 RCNY § 5-03 (d). Further, the Court grants CFB's counterclaim against STRAKER.

BackgroundCFB is a nonpartisan New York City agency established in 1988 by the New

York City Campaign Finance Act (the "Act") (3 AC § 701 et seq.) and Chapter 46 of the New York City Charter. The Rules of CFB are codified in Chapter 52 of the RCNY. Pursuant to the Act, CFB administers the Campaign Finance Program (the "Program"), providing public matching funds to candidates for New York City public office. To qualify for these public funds, a candidate agrees to abide by the Program's requirements, including: limitations on the total amount of money the campaign may spend to promote the candidate's nomination or election; limitations on the amount of contributions the campaign may receive from any single contributor; the filing of periodic disclosure statements that report campaign contributions and expenditures; and, responding to CFB's requests for documentation and information that demonstrate a campaign's compliance with the Program. (See 3 AC § 3-701 et seq.).

CFB, under the version of the Act in effect for the 2009 election cycle, matched

contributions that participating candidates received from individual New York City residents with payments of public funds at a ratio of six dollars for every one dollar in private contributions, up to $175.00 per contributor (up to $1,050.00 in public funds per contributor). Public matching funds are drawn from the Campaign Finance Fund, a special fund of public [*2]dollars drawn from the City's general funds and established by the Act and the Charter.

Participating campaigns that receive public matching funds from CFB may use such funds only on certain expenditures ("Qualified Expenditures") that further the participating candidate's nomination or election. (3 AC § 3-704; 53 RCNY § 1-08 [g]). If CFB determines that a campaign used public matching funds for expenditures which are not Qualified Expenditures, as defined by the Act and CFB Rules, the campaign committee, and in some instances the candidate, must pay back to CFB an amount equal to the amount of public funds used for such non-qualified expenditures (the "Qualified Expenditure Deficit"). (See 3 AC § 710 [2] [b]); 52 RCNY § 5-03 [d]).

ADRIAN STRAKER was a participating candidate in the Program during the 2009 election for District 36 of the City Council, in Brooklyn. FRIENDS OF ADRIAN STRAKER was her designated campaign committee ("the Committee"). CARL STRAKER was the Committee's Treasurer. STRAKER received a total of $35,550.00 in matching public funds, but STRAKER adequately documented only $13,624.00 as Qualified Expenditures [affirmation in opposition to petition, ¶ 6]. CFB conducted its routine post-election audit, during which it requested documentation and information regarding the $21,926.00 of expenditures for which the Campaign had not submitted adequate documentation [affirmation in opposition to petition, ¶ 7; respondent's exhibit 3]. Since STRAKER failed to provide adequate documentation and information regarding the $21,926 of expenditures in question, CFB again requested this documentation and information in its November 23, 2011 Public Funds Calculation Repayment Notice to STRAKER [respondent's exhibit 4]. STRAKER received three extensions of time to respond, totaling 68 days [affirmation in opposition to petition, ¶'s 11 - 14]. Nevertheless, STRAKER failed again to provide the requested documentation and information [affirmation in opposition to petition, ¶ 15].

STRAKER, on April 12, 2012, appeared before CFB [respondent's exhibit 5], which determined that STRAKER had to repay $21,926.00, because the Campaign failed to adequately document that these funds were spent on Qualified Expenditures [respondent's exhibit 6].

Then, on May 26, 2012, STRAKER filed a petition [respondent's exhibit 7], pursuant to 52 RCNY § 5-02 (a), challenging CFB's April 12, 2012 determination. Pursuant to 52 RCNY § 5-02 (a) (3), a candidate participating in the Program:

may submit a petition for review of a payment or non-payment

determination after the issuance of the participant's final audit report

within thirty days of issuance of the final audit report and only upon

submission of information and/or documentation that was unavailable

to the Board previously and is material to such determination, and a

showing that the participant had good cause for the previous failure

to provide such information and/or documentation. [Emphasis added]

Moreover, pursuant to 52 RCNY § 5-02 (a) (2):

The participating candidate and his or her principal committee

shall not include in any such petition any documentation or factual

information not submitted to the Board prior to the determination

under review unless the participating candidate can demonstrate [*3]

good cause for the previous failure to submit such documentation

or information and for any failures to communicate on a timely basis

with the Board. [Emphasis added]

Thus, petitioner STRAKER had the burden of submitting only new, material information and/or documentation that previously was unavailable and demonstrating good cause for the earlier failure to submit this information and/or documentation to CFB.

Accompanying STRAKER's petition were two documents - a copy of a signed invoice from a consultant, which had previously been submitted unsigned, and a list of events at which the consultant worked [respondent's exhibit 8]. CFB considered STRAKER's petition at its June 21, 2012 meeting [respondent's exhibit 10] and issued a final determination on June 22, 2012 [respondent's exhibit 9], in which it found: the new documentation submitted by STRAKER was not material to its final determination; the Campaign failed to show good cause for its previous failure to provide the documentation; and, 52 RCNY Board Rule § 5-02 (a) does not require the Board to grant extensions of time to gather additional documentation.

In an Article 78 proceeding the Court's function is to determine whether the action of an administrative agency had a rational basis or was arbitrary and capricious. (Pell v Board of Educ. of Union School District No.1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 230-231 [1974]). "Arbitrary action is without sound basis in reason and is generally taken without regard to the fact." (Pell at 231). A rational basis exists where the determination is "[supported] by proof sufficient to satisfy a reasonable [person], of all the facts necessary to be proved in order to authorize the determination." (Ador Realty, LLC v Division of Housing and Community Renewal, 25 AD3d 128, 139-140 [2d Dept 2005], quoting Pell at 231).

A reviewing court will not substitute its judgment for that of the agency unless the agency's determination is arbitrary, capricious or contrary to law. (See Pell at 231; Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508, 520 [1956]; Matter of Brockport Cent. School Dist. v New York State & Local Employees' Retirement System, 270 AD2d 706, 707-708 [3d Dept 2000]). Pursuant to CPLR § 7803 (3), the question raised in an Article 78 proceeding is "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion."

STRAKER, in the instant action, alleges that CFB's denial of its 52 RCNY § 502 (a) petition was arbitrary, discriminatory and a denial of due process [¶ 5 of verified petition]. However, STRAKER fails to explain how or why CFB's denial of its 52 RCNY § 5-02 (a) petition was arbitrary, discriminatory and a denial of due process. CFB reviewed the new documents presented by STRAKER to CFB, with STRAKER'S petition. In its June 22, 2012 determination [respondent's exhibit 9], CFB:

found that the new documentation submitted by the Campaign is

not material to its determination and that, in any event, the Campaign

did not show good cause for its previous failure to provide such

documentation. Further, Board Rule 5-02 (a) does not provide for

extensions of time to acquire additional documentation. The Board

therefore denied the Petition.

STRAKER claims that CFB acted arbitrarily in denying its request for yet an additional extension of time to submit more documents. However, STRAKER had repeated opportunities to provide additional documentation and/or information and failed to do so. Due process does not mandate that CFB grant repeated and unlimited extensions of times

CFB's denial of STRAKER's petition has a rational basis, pursuant to 52 RCNY

§ 5-02 (a) (3), relying upon the plain language of the Rule. The determination by CFB was not arbitrary, capricious or a denial of due process. Therefore, the instant STRAKER Article 78 petition is dismissed and judgment is granted on respondent CFB's counterclaim, pursuant to 42 RCNY § 503 (d), for repayment of "improperly used public funds."

Accordingly, it is hereby

ORDERED that the instant Article 78 petition by pro se petitioners, ADRIAN STRAKER, CARL STRAKER and FRIENDS OF ADRIAN STRAKER is dismissed; and it is further;

ORDERED that respondent NEW YORK CITY CAMPAIGN FINANCE BOARD's counterclaim for a judgment against petitioner FRIENDS OF ADRIAN STRAKER in the amount of $21,926.00 plus interest from May 29, 2012 and cost and disbursements is granted.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACK[*5]J. S. C