Supreme Court, Albany County, May 7, 2024 Headnote

Eric E. Benedetti, applicant pro se.

Eric Benedetti (applicant) is a fine outstanding citizen who seeks a license to possess and carry a handgun. Since the Second Amendment's core freedoms encompass carrying a gun for self-defense, the court must grant the license unless a proper justification exists to disqualify the applicant (New York State Rifle & Pistol Assn., Inc. v Bruen, 597 US 1, 32 [2022]).{**84 Misc 3d at 544} Benedetti's application, without a doubt, presents no barriers to obtaining a license.

However, the question here is not whether the applicant has a right to a license, but rather, does the court possess the power to grant it. In this context, power translates to jurisdiction. Thus, if the court lacks jurisdiction, it is powerless to issue the license.

The legislature has established procedures governing the issuance of gun licenses (Penal Law § 400.00 et seq.). In particular, the legislature instructed that "[a]pplications shall be made . . . to carry or possess a pistol or revolver . . . to the licensing officer in the city or county . . . where the applicant resides . . . [or] is principally employed" (Penal Law § 400.00 [3] [a]). Accordingly, the applicant must have a geographic nexus to the county where he makes his application. In particular, the applicant must either reside or be principally employed in the county where he seeks licensure.

The problem here is that the applicant lives in Erie County and performs (carries out) his work in Erie County.^[FN1] Thus, the applicant has no personal connection with Albany County. However, his employer, the New York State Tax and Finance Department, has its principal place of business in Albany County. Against this backdrop, the court must determine if it has the authority to grant a license.

To begin with, the court must decide if Penal Law § 400.00 (3) (a)'s geographic provision presents as a venue restriction (flexible in nature) or a jurisdictional restriction (inflexible in nature). As explained below, this issue's resolution settles the matter.

The terms venue and jurisdiction are part of the judicial nomenclature. However, this [*2]case is unusual; it arises not in the course of deciding a dispute between parties—which is the court's constitutional assignment (NY Const, art VI, § 7). Instead, in this context, a judge acts as a licensing officer. The legislature, in its wisdom, divided the licensing function between the judicial branch (judges) and the executive branch (police chiefs). Certainly, in deciding a licensing question, a judge determines facts, applies the law to those facts, and arrives at a decision. This makes the licensing process quasi-{**84 Misc 3d at 545}judicial, but not fully judicial (Matter of Sibley v Watches, 194 AD3d 1385, 1389 [4th Dept 2021]).

Thus, the gun licensing process exists in an uneasy and constitutionally murky boundary between the judicial and executive functions.^[FN2] To navigate through these waters, the best course may be to morph judicial principles to fit this executive proceeding. The analogical application of judicial concepts in an executive setting is a somewhat screwy endeavor. Nevertheless, given the mixing of roles, importing judicial terms appears to be the best path towards resolution.

Returning to Penal Law § 400.00 (3) (a), its geographic restriction may be considered either a venue or jurisdictional constraint. Starting the analysis with venue, venue merely represents the place where the law presumes that the matter should be heard; because that place, in theory, represents the most convenient and efficient place to conduct the proceedings. But a venue requirement is not sternly enforced. It can be waived or modified by agreement (CPLR 509). Moreover, venue is not self-enforcing. For a court to act on improper venue, it must be moved by a party (Siegel & Connors, New York Practice § 116 at 246 [6th ed 2018]). Finally, a matter improperly venued does not inhibit the court's ability to issue enforceable orders (see Matter of Lucchese v Rotella, 97 AD2d 645, 646-647 [3d Dept 1983] [the court "cannot be divested of . . . jurisdiction even when a proceeding is commenced in the wrong county"]).

Section 400.00 (3) (a) as a venue provision merits strong consideration. The statutory language itself reads like a venue text. It talks about residency and workplace as the location to bring the application, implying its purpose is ease of adjudication. Moreover, legislatures enact venue statutes, in part, to curb forum shopping. And so is the case with section 400.00 (3) (a), according to the Court of Appeals. The Court has interpreted section 400.00 (3) (a), albeit in a different context, and found it "evident that the law was originally designed to ensure that licenses were obtained where applicants resided, and to{**84 Misc 3d at 546} discourage forum-shopping" (Osterweil v Bartlett, 21 NY3d 580, 586 [2013] [internal quotation marks omitted]).

Normally, a litigant who seeks an advantage by siting a matter in an improper forum can be stopped by his adversary. That is, in an adversarial proceeding, the opposing side has the ability to object to an improper forum. But here, no adversary exists. Significantly, the court may not on its own accord transfer a matter because of improper venue (Matter of Travelers Indem. Co. of Ill. v Nnamani, 286 AD2d 769, 770 [2d Dept 2001]). Therefore, if section 400.00 (3) (a) constitutes a venue statute, then the applicant's choice of forum for a gun license, though out of [*3]compliance with geographic restrictions, may not be disturbed by the court.

This conclusion however would result in forum shopping going unchecked. Forum shopping is considered undesirable because it raises the fear that a litigant will be able to determine the outcome of a matter simply by choosing a favorable venue (Sheldon v PHH Corp., 135 F3d 848, 855 [2d Cir 1998]).

This is a problem. Section 400.00 (3) (a)'s geographic limitations were enacted "to prevent New York City residents from obtaining handgun permits in counties" where the process for getting a license was more lax than New York City (Osterweil, 21 NY3d at 586). Thus, if section 400.00 (3) (a) is seen as a pure venue provision, the applicant would be empowered to pick the county of his choice to seek a permit. In essence, a permit applicant would have a unilateral veto over the statutory restriction. Indeed, this would "enable [a license applicant] to elude [the statute's geographic] provisions in the most easy manner" thereby subverting the purpose of section 400.00 (3) (a) (The Emily, 9 Wheat [22 US] 381, 389 [1824]). This is unacceptable. Therefore, the court concludes that the venue analogy fails.

Penal Law § 400.00 (3) (a) therefore must be jurisdictional in nature. Jurisdiction, unlike venue, cannot be waived. In particular, since this proceeding, like a special proceeding, is "governed entirely by statute[,] . . . there must be strict compliance with the statutory requirements to give the court jurisdiction" (Matter of Cat Hollow Estates, Inc. v Savoia, 46 AD3d 1293, 1294 [3d Dept 2007]). Thus, the geographic limits go directly to the court's ability to exercise its judicial power.

At the licensing hearing, the applicant told the court that he lives in Erie County and carries out his work assignment{**84 Misc 3d at 547} principally (and seemingly exclusively) there. Now, it could be argued that section 400.00 (3) (a)'s requirements were fulfilled because the applicant is principally employed by an entity (Department of Taxation and Finance) which has its principal place of business in Albany County. Indeed, the applicant was instructed to bring the permit application in Albany County for this very reason.

Fulfilling the geographic requirement by virtue of an employer's principal place of business may be an altogether appropriate construction. But for that to be true and to satisfy the geographic requirement imposed by the legislature, the applicant's place of principal employment must mean the same thing as the employer's principal place of business. There are no reported cases which define principally employed, so the issue is resolved by straight statutory interpretation.

Statutory interpretation begins with the statute's language (Yatauro v Mangano, 17 NY3d 420, 426 [2011]). Principal place of business is an ancient term (Bowen v Argall, 24 Wend 496 [Sup Ct Judicature 1840]), with which the legislature is quite familiar. In fact, section 400.00 (3) (a) employs the term. The statute provides that shopkeepers and merchants may bring an application in the county where their principal place of business is located. This language choice signifies that the legislature considered the term principal place of business to mean something different than the term principally employed. This seems in accord with what little authority exists on the subject (see Owens v Owens, 1993 WL 307477, *2, 1993 Ohio App LEXIS 3890, *5 [3d Dist, Union County, Aug. 9, 1993, No. 14-93-6] [rejecting the argument that place of employment is synonymous with principal place of business]).

Moreover, and more importantly, the phrase principally employed has a different focus than principal place of business. The latter refers to the location where corporate officers direct, control, and coordinate the corporation's activities (Hertz Corp. v Friend, 559 US 77, 92-93 [2010]). In contrast, principally employed, in the court's estimation, focuses on where the [*4]employee conducts his activities. That is, the place where the employee carries out his employment tasks, rather than the location from where his orders come. Thus, the court concludes that the concept of where the applicant is principally employed is different from the concept of where the applicant's employer's principal place of business is located.

Consequently, under section 400.00 (3) (a), a licensing officer has the ability to grant a license to an applicant only if the applicant{**84 Misc 3d at 548} lives or performs his work in the county where the officer is venued. Unfortunately, the applicant neither lives nor works in Albany County. Therefore, since the court lacks jurisdiction to entertain the application, it must sua sponte dismiss the matter for lack of jurisdiction (Weg & Myers v Security Sys. by Hammond, 167 Misc 2d 1042, 1045 [Civ Ct, NY County 1996]). Therefore, it is ordered that the Albany County Clerk return the application to the applicant with a copy of this decision and order.