In a recent decision issued by the Appellate Division, First Department, HBA prevailed against the New York City Department of Buildings Commissioner who illegally revoked a Hoist Machine Operator's License after wrongfully concluding that the licensee's past criminal conviction demonstrated poor moral character adversely reflecting on his fitness to hold public license under the New York City Administrative Code. While HBA frequently litigates municipal land use determinations, Aldo Gallo v. Robert LiMandri, Commissioner of the New York City Building Department demonstrates the powerful result Article 78 litigation can produce in municipal determinations affecting public licensing thereby impacting a litigants ability to earn a living and provide support to their family.

In 2002, the New York City Department of Buildings (NYCDOB) awarded Gallo a Hoist Machine Operator's license making him eligible to operate cranes and derricks on construction sites. In 1999, Gallo became a member of Local 14 of the International Union of Operating Engineers whose members run construction machinery. Often times, Gallo went weeks without steady work after after appearing at the Union Hall each morning for "shaping" by which union delegates would select members for job assignments. In 2002, a coworker advised Gallo of a new construction project. Gallo appeared at the project and introduced himself to the "master mac"- foreman in the hope of obtaining steady work to support his young daughter. Gallo later contacted another "master mac" he knew from Local 14 events and simply asked the master mac to "put in a good word" so Gallo could obtain a job at the new construction site. Gallo obtained and performed the requested job without incident. There is no allegation that Gallo obtained his job through bribe or that he failed to perform his job in a workmanlike manner.

Unbeknownst to Gallo, federal investigators, recorded his request for a " good word" within a widespread investigation of high level corruption at Local 14. Twenty four co-defendants, including Gallo, were charged with racketeering and related offenses alleging they conspired to extort preferential treatment to members of organized crime. Supporting Gallo's mail fraud, federal prosecutors reasoned that he received his statement of union benefits via the United States Postal Service. Gallo consulted counsel and agreed to plea guilty and accept probation rather than risk jail and separation from his young daughter.

Effective 2008, NYCDOB required license applicants to disclose prior criminal conviction. Upon disclosing his 2005 mail fraud conviction, NYCDOB commenced license revocation proceedings upon charge that Gallo's mail fraud conviction violated the NYC Administrative Code requirement that a public licensee possess good moral character.

The Administrative Law Judge found Gallo guilty but recommended a one year license suspension, rather than revocation based upon Gallo's guileless request for a good word and the United States Supreme Court decision of Skilling v. United States, which construed mail fraud to require a bribe or threat, elements wholly absent from Gallo's case. The NYC Building Commissioner rejected the ALJ recommendation and revoked Gallo's HMO license noting that notwithstanding Skilling, Gallo's conviction was not overturned.

The lower court granted Gallo's Article 78 petition to reverse the revocation. NYCDOB appealed Gallo and two other license revocation cases arising from the same federal prosecution of Local 14 members. (Matter of Duffy v. LiMandri and Matter of Inglese v. LiMandri). Prior to hearing the Gallo appeal, the First Department sustained the license revocations of Duffy and Inglese.

Despite the contrary Duffy and Inglese holdings, the First Department differentiated Gallo's conduct: '[t]that cases arise out of the same federal prosecution does not mean each petitioner's culpability is the same as that of all the others." The First Department noted that Gallo only admitted making a verbal request for a good word in obtaining work and that the penalty imposed lacked "any justification under the facts and circumstances..." Gallo succeeded in retaining his Hoist Machine Operator's

License.

Counsel, Janice Whelan Shea, Esq. litigated this case both in the lower court and on Appeal.