Opinion
2011-10-11
In the Matter of Karen N. PARKER, respondent,v.STATE of NEW YORK, DEPARTMENT OF MOTOR VEHICLES, appellant.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and David Lawrence III of counsel), for appellant.Karen N. Parker, Brooklyn, N.Y., respondent pro se.
799 In a proceeding pursuant to CPLR article 78 to review a determination of the Appeals Board of the State of New York, Department of Motor Vehicles, dated June 22, 2009, which affirmed a determination of an administrative law judge dated September 4, 2008, made after a hearing, that the petitioner violated Vehicle and Traffic Law § 1225–c(2)(a), and imposing a fine of $40 plus a surcharge, the State of New York, Department of Motor Vehicles appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Ruchelsman, J.), dated June 15, 2010, which, in effect, denied that branch of its cross motion which was pursuant to CPLR 3211(a)(5) to dismiss the petition as time
barred, granted the petition, and annulled the determination.
ORDERED that the order and judgment is reversed, on the law, with costs, that branch of the appellant's cross motion which was pursuant to CPLR 3211(a)(5) to dismiss the petition as time-barred is granted, and the proceeding is dismissed.
The petitioner commenced the instant proceeding pursuant to CPLR article 78 more than four months after the determination of the Appeals Board of the State of New York, Department of Motor Vehicles (hereinafter the Appeals Board) became final and binding upon her ( see CPLR 217[1]; Matter of Best Payphones, Inc. v. Department of Info. Tech & Telecom. of City of N.Y., 5 N.Y.3d 30, 34, 799 N.Y.S.2d 182, 832 N.E.2d 38). Moreover, contrary to the Supreme Court's determination, the Appeals Board did not create an ambiguity as to whether a final and binding determination had been issued ( see Matter of Carter v. State of N.Y., Exec. Dept., Div. of Parole, 95 N.Y.2d 267, 271, 716 N.Y.S.2d 364, 739 N.E.2d 730; Matter of Hill Park Health Care Ctr., Inc. v. Novello, 12 A.D.3d 1010, 1011–1012, 785 N.Y.S.2d 566). Consequently, the proceeding was time-barred ( see Matter of Cohen v. Suffolk County Bd. of Elections, 83 A.D.3d 1063, 921 N.Y.S.2d 573; Matter of Miritello v. Nassau County, 70 A.D.3d 1041, 893 N.Y.S.2d 899).
In light of our determination, we need not reach the appellant's remaining contention.
RIVERA, J.P., BALKIN, HALL and COHEN, JJ., concur.