Petitioner Patrick Giacomo worked for the Jersey City, New Jersey Fire Department from March 18, 1982 until his retirement on July 1, 2012. According to the papers before the Court, petitioner initially served as a fireman but was promoted — first to the rank of Fire Captain, then to the position of Hazardous Material Response Officer and Technician for Country Wide Operation, and finally to City and Country Wide Safety Officer in charge of the Mask Service Unit.

Following his retirement, petitioner applied for certification as a site safety manager (SSM) at construction sites in New York City. Generally, an applicant for a construction-related [*2]license must be at least eighteen, know how to read and write in English, be of good moral character, and be fit to perform the job in question (NY City Building Code [Administrative Code of City of NY tit 28, ch 4] § 28-401.6). An applicant for the position of SSM must successfully complete an examination (Id. § 28-401.7) and submit a photo id such as a driver's license, an original social security card, an original birth certificate, passport, or green card. In addition, to be a site safety manager, an applicant must "submit satisfactory proof" establishing his or her eligibility through one of six possible ways. As is relevant here, the applicant can show that he or she

"[h]as completed an 18 month on-the-job training program working on major buildings as that term is defined in chapter 33 under the direct and continuing supervision of a certified site safety manager. Such on-the-job training shall conform to rules promulgated by the department. The supervising site safety manager shall certify the trainee's satisfactory completion of the training program. In addition, the applicant shall provide proof that, within one year prior to the date of application, he or she has satisfactorily completed a 40-hour course approved by the department" (Id. § 28-402.2 [4]).

Around June 12, 2015, immediately upon completion of his training, petitioner submitted his application for the certificate. As required, petitioner submitted proof of his identity and residence, and provided proof that he took the necessary instructional courses and passed the qualifying examination. His application packet also included evidence of his wages including an "advice of deposit" document for his work from May 11 — 24, 2015; the advice of deposit indicated that petitioner worked seventy-two regular hours and sixty overtime hours during this two-week period. His background questionnaire was also part of the application process. Among other things, this indicated that he had no prior arrests or convictions and noted his past work as a firefighter.

Petitioner further provided a copy of his certificate from Total Safety, which stated that petitioner completed his on-the-job training, and copies of verification forms from each of the Total Safety's construction projects at which he worked. The forms indicated that petitioner's on-the-job training covered every aspect of an SSM's work. The requisite monthly program summaries were also submitted. These summaries included detailed information about the precise duties and training petitioner received each month, and demonstrate that his supervisors gradually added more responsibilities and trained petitioner on more complex aspects of an SSM's job, until the tasks were fully integrated. The forms provided data indicating how frequently petitioner performed the specific aspects of a SSM's job. The forms additionally noted that petitioner immediately commenced work as the CSFSM on October 2, 2013, the start date of his training for the job of SSM, and that there is no indication he required any training for this aspect of his work.

On February 2, 2016, respondent the New York City Department of Buildings (DOB) rejected petitioner's application. The rejection letter stated that:

[Y]our supervising SSMs stated that during the training program, you were also employed as the [CSFSM] at the worksites. As the CSFSM, your responsibilities required [*3]your full and continuous attention in overseeing and supervising all fire safety measures for the construction sites. CSFSM duties are distinct from site safety work as CSFSM are required to ensure compliance with the New York City Fire Code rather than the Building Code. Based on a review of the notarized summaries, a substantial portion of your duties were related to your position as a CSFSM instead of as a site safety trainee. Such listed CSFSM duties included monitoring fire panels, maintaining Fire Department daily log books, leading meetings on fire safety and coordinating with the Fire Department on hot work permits and inspections. Consequently, as you continued to work as the CSFSM, the Department was unable to verify that your training program consisted of full-time site safety work.

Petitioner did not make a request to file additional materials. Instead, around May 13, 2016, he commenced this proceeding. Petitioner argues that respondents the DOB and the City of New York acted arbitrarily in denying his application. In particular, he points out that when buildings under construction are under twenty stories high, one person can work fulltime as both the SSM and CSFSM. He states it is "rationally and factually absurd" to mandate that two fulltime employees must work on a building only one floor higher (Giacomo petition at ¶ 18). In addition, he points out, the SSM of a building under twenty stories high is permitted to serve as fulltime SSM and CSFSM while also training up to three SSM applicants. In light of the amount of work an SSM can perform in a smaller building, petitioner contends that it was irrational for the DOB to conclude summarily that he could not perform his duties as a trainee while he served as CSFSM.

Furthermore, petitioner argues, the DOB's conclusion is irrational because to an extent the duties of a CSFSM and an SSM overlap. According to the petition, the additional duties did not take up a significant amount of additional time. Petitioner also argues that the DOB's conclusions to the contrary reveal a lack of understanding of the CSFSM's individual duties. He contends that because no one from the DOB observed his work, its conclusions about the time allocated to his SSM training are unfounded. Petitioner notes that he worked a significant amount of overtime each month so he could perform both jobs satisfactorily, and that it was irrational of the DOB to ignore this information. He states that the DOB's failure to credit the sworn statements of the numerous supervising SSMs that he received full training, or at least to make further inquiries of those supervisors, also renders the determination irrational. There were seven SSMs who filed sworn statements as to petitioner's training, he states, often including the statement that petitioner performed both CSFSM and SSM duties satisfactorily, and it is "ludicrous" for the DOB to conclude that all seven of these individuals provided false information (Id. at ¶ 29).

In support, petitioner submits his own affidavit. He states that he has been a CSFSM since October 2012, and that he is also a Construction Health and Safety Technician (CHST). The Fire Department and the Board of Certified Safety Professionals, respectively, issue these certifications. He asserts that, as stated in the petition, his role as SSM trainee and CSFSM largely overlap, and that the Fire Safety Director rather than the CSFSM monitors the system fulltime. His job, on the other hand, was "to observe conditions, warn of dangerous conditions, [*4]and record observations" (aff of petitioner at ¶ 6); to check "the red lights, air pressure and the FDNY connection," perform orientations, and complete paperwork and hot works permits (Id. at ¶ 7); and to conduct FDNY and standpipe logs throughout the building, observing places of egress and exists for access and cleanliness. He contends that the two jobs "have more in common than any two other positions on a major construction building" (Id. ¶ 9). He dismisses the DOB's position that it is time-consuming to monitor the fire panel, as this only requires the CSFSM to confirm that the panel is operational in the morning, after which the Fire Safety Director monitors the panel. He further discusses the relatively short periods of time it takes him to perform his other CSFSM duties.

Further, he notes, he worked a signification amount of overtime. He contends he worked an average of over nineteen hours of overtime each week. Between October 2013 and February 2014, his overtime was more minimal, ranging from six to twelve hours, he states. He states that he worked thirty-four extra hours in March 2014, but subsequently worked between fifty-four and one-hundred-sixty-five hours extra per month. He states that, had the DOB performed a proper investigation as required by law, it would have discovered this and realized their unsubstantiated conclusion was in error. Finally, he points out that because he had been a fireman for over twenty-nine years, during which he received several promotions and worked as a Fire Department Liaison Safety Officer, he was able "to easily learn the building codes and effortlessly work doing CSFSM and SSM work" (Id. ¶ 20).

Petitioner also submits the affidavit of Malcolm Punch, a senior safety consultant at Total Safety. Mr. Punch states that he is a certified SSM as well as a licensed CSFSM and that he has sixteen years of experience along with significant experience training license applicants. Moreover, he states, he oversaw petitioner's training and his work as a CSFSM. He argues that whoever determined that petitioner's application should be denied "has very little knowledge of the duties required of a FSM" (Punch aff at ¶ 4). He states that because both jobs require a walk-through of the building to ensure compliance with the respective codes, it is possible for a manager to make these arguments in the same walk-through. He further confirms that petitioner put in many overtime hours, and stated that these easily enabled petitioner to complete both jobs. He concludes that "Total Safety paid Mr. Giacomo to perform the FSM duties," and adds that "[i]f we felt that he couldn't perform both sets of duties, we would not have employed him for that position" during his training (Id. at ¶ 5).

Another affidavit is from Rizo Ramusevic, a risk management director at J.E. Levine Builder Inc d/b/a Levine Builders (Levine), which employs Total Safety on many of its building projects. A licensed SSM and CSFSM himself, Mr. Ramusevic states that Levine was aware that petitioner would be training while working as a CSFSM and had complete faith that he could perform both jobs. Otherwise, he states, Levine would have terminated its contract with Total Safety or required an additional CSFSM. He affirms that petitioner worked hundreds of hours of overtime and states that this enabled him to perform both duties with ease. He concludes that petitioner "is extraordinarily capable as both a [CSFSM] and a SSM trainee," adding that "[h]e would be an asset to construction safety industry in this city" (Ramusevic aff at ¶ 6).

In their answer, respondents emphasize that section 29-1408.1 of the Administrative Code ^[FN1] mandates that a separate CSFSM is required for all buildings over twenty stories. They point to the denial letter of February 2, 2016. They state, as their affirmative defense, that the [*5]determination was rational and was consistent with the relevant rules and laws. They point to Administrative Code § 28-402.2, which sets forth the requisite qualifications for a site safety manager.^[FN2] They note that petitioner admits he worked as the CSFSM during his training. They point out that petitioner's projects included buildings that were fifty-seven, forty-one, and twenty-nine story projects, and that these buildings required separate fire and site safety managers. They state that although petitioner currently alleges that he worked a significant amount of overtime hours, petitioner's application did not indicate that he worked overtime, and that petitioner's alleged overtime hours do not "credibly establish that he trained full-time as site safety manager throughout the 18-month training period" (respondents' answer at ¶ 79).

In addition, respondents note the highly deferential standard of review applicable to Article 78 proceedings. They stress that the court cannot substitute its judgment for that of the agency. Instead, courts only overturn irrational determinations or ones made in contravention of the prevailing laws. Petitioner's assertions are insufficient to satisfy this high burden, they contend. They reject his argument that he was able to perform both jobs because of their significant overlap, and instead contend that an SSM trainee's position requires more rigorous work and longer hours than that of an SSM because he or she "must work full-time to gain the skills necessary" (brief for respondents at 9). They claim that the DOB has a rational interest in ensuring that an SSM trainee devote all of his or her time to training. Further, they argue, petitioner's allegations that the two jobs overlap significantly and that the position of CSFSM can be performed relatively quickly are incorrect in that they drastically oversimplify the requirements of the CSFSM and ignore the substantial ways in which the jobs do not overlap. They stress that the administrative code requires that there are separate CSFSMs and SSMs at buildings over this height precisely because the duties are too extensive to be performed by one individual.

Furthermore, respondents allege, petitioner has not supported his contention regarding the number of hours of overtime he accrued and does not break down his hours in a way that details the number of hours he spent on each of his two jobs or show that he devoted sufficient time to his training on a week-by-week basis. They stress that for several months he worked very few overtime hours, which suggests that he did not devote significant time to both positions. Even if the arguments regarding his overtime are accurate, respondents state, petitioner cannot prevail because he did not submit this portion of his work records along with his application. Therefore, they argue, it was reasonable for the DOB to conclude that he split his time between the two jobs and thus did not complete a full-time SSM training program.

In reply, petitioner states that the deferential standard applicable to Article 78 proceedings does not insulate respondents from challenges to arbitrary determinations. He states that he submitted his social security earnings history and respondents did not ask for additional verification showing he worked overtime. He states that he did not submit further documentation because he did not anticipate that his application would be denied on this purportedly arbitrary basis. Petitioner argues that it was the DOB's obligation to request proof of the hours worked and not petitioner's duty to provide it.

In reviewing an agency determination under Article 78, "the standard for judicial review of an administrative determination pursuant to CPLR article 78 is limited to inquiry into whether [*6]the agency acted arbitrarily or capriciously" (Arbuiso v New York City Dept. of Buildings, 64 AD3d 520, 522 [1st Dept 2009] [denial of application for reinstatement of plumber's license]. The decision is arbitrary if there is no "sound basis of reason" or if the decision is made without "regard to the facts" (Resto v State Dept. of Motor Vehicles, 135 AD3d 772, 772 [2nd Dept 2016] [denial of application for new driver's license]). Moreover, if the agency's determination is sound, "the judicial function is at an end" (Id.). This does not insulate decisions from judicial review, however (See, e.g., Rossakis v New York State Bd. of Parole, 146 AD3d 22 [1st Dept 2016] [finding decision denying parole irrational where board did not fairly consider the requisite statutory factors]).

In the case at hand, the DOB had a nondiscretionary duty to issue a SSM certificate as long as petitioner satisfied the requirements set forth in the Administrative Code (See Administrative Code of City of NY tit 28, ch 100, § 104-08 [a] [noting that the DOB "shall" issue the certificate to a qualified individual]). The DOB's decision to deny petitioner's application is irrational because petitioner facially complied with the requirements and respondents' objections to the application are based on the board's unsubstantiated speculation that petitioner could not perform as the CSFSM while training as an SSM. For one thing, the DOB did not consider the number of hours, inclusive of overtime, that petitioner worked. Although petitioner's submissions did not include documentation of his total overtime during his training period, a payment notification that was included, covering the period of May 11 — 24, 2015, showed that petitioner worked seventy-two regular hours and sixty overtime hours during this period. In light of these factors, the DOB's determination was conclusory (Compare to Krasniqi v Dept of Citywide Admin. Serv., 105 AD3d 590, 591 [1st Dept 2013] [finding that denial of master plumber's license was rational where the DOB heard petitioner's arguments but deemed his statement that he worked fulltime while attending school fulltime was not credible in light of his work history, tax records, and inability to describe his plumbing work during the period in question]). The DOB did not note in the record that petitioner's payroll notification suggested that he worked substantial overtime and it did not conduct a further inquiry concerning the overall hours petitioner worked.

Furthermore, the DOB did not consider that petitioner was not the average applicant, but rather a retired fireman with twenty-nine years of experience, including as a City and Country-Wide Safety Manager in the Mask Supervision Unit, that he was also a licensed CSFSM, and that these qualifications might have increased his ability to work quickly and efficiently at his jobs — in particular, in his role as CSFSM. In this regard, as petitioner points out, the DOB also did not give considered weight to the monthly summaries, sworn to by petitioner's supervisors, which indicated that he was satisfactorily completing all aspects of his required training. These reports also explicitly stated that petitioner performed all of the SSM duties required of him each month in addition to his CSFSM duties (Compare to Rasole v Dept of Citywide Admin. Serv., 83 AD3d 509, 509 [1st Dept 2011] [finding that the DOB acted rationally in denying Master Fire Suppression Piping Contractor's license where two of the three employer affidavits stated that the petitioner "did not perform the type of work necessary to satisfy the prior experience requirement for obtaining such a license"]; and Matter of Serra v New York City Dept of Buildings, 2013 NY Slip Op 30085(U)** [Sup Ct, NY County 2013] [job descriptions by petitioner's employers revealed that he did not have the breadth of experience necessary for the license, but rather worked primarily at housekeeping and maintenance]).

Respondents urge that petitioner's description of the role of the CSFSM is oversimplified [*7]and leaves out critical parts of the job. Although this may be true, the Court concludes that, as petitioner argues, the DOB did not give due consideration to his roles at the construction sites and the time commitment involved in each. In addition, although the DOB listed some of the work petitioner performed as CSFSM for the buildings, its denial failed to take note in the record of the substantial duties petitioner performed in his training for the position of SSM, all of which was described in great detail in the monthly summaries. The summaries, the Court notes, also describe petitioner's work as CSFSM and assert that petitioner was able to perform that role while undergoing his training. The DOB did not consider these assertions.

The DOB assumed that section 29-1408.1 of the Administrative Code requires that the CSFSM on buildings over twenty stories high must work a specified number of hours (Matter of Auringer v Department of Bldgs. of the City of New York, 24 AD3d 162, 162 [1st Dept 2005] [finding decision had basis in reason although the respondent's determination that "appropriate experience" requirement meant petitioner had to work fulltime during the requisite period was irrational]).^[FN3] Furthermore, the DOB did not take into consideration the fact that, in addition to petitioner, there was a licensed SSM at each of the construction sites, or that petitioner's training was broken into parts, so that he learned pieces of the job each month, slowly increasing his workload as he developed his expertise.

For all the reasons above, this Court concludes that a remand to the DOB is appropriate. The Court declines to mandate that the DOB issue a license to the petitioner, but rather requires it to render a determination based on a more comprehensive consideration.

Based on the above, it is

ORDERED and ADJUDGED that the petition is granted to the extent of remanding this matter to the DOB, and the proceeding is remanded for further proceedings consistent with this decision. The Court notes that it has considered all the parties' other arguments and reviewed the transcript of the argument before Justice Billings in reaching its conclusion.

The Clerk is directed to enter judgment accordingly.