Opinion
129–18
01-19-2018
In the Matter of the Application of MACKEY AUTOMOTIVE, LLC, Petitioner, v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, Department of Motor Vehicles Appeals Board, Commissioner of Motor Vehicles, Janet Ho as New York State Deputy Commissioner for Policy, Safety, & Driver Licensing, and Heriberto Barbot as New York State Deputy Commissioner for Operations and Customer Service, Respondents, for a Judgment Pursuant To Article 78 of the Civil Practice Law and Rules.
Towne, Ryan & Partners, P.C., James J. Towne, Jr., of Counsel, Attorneys for Petitioner, 450 New Karner Road, Albany, New York 12205 Eric T. Schneiderman, Attorney General of the State of New York, Omar J. Siddiqi, of Counsel Attorney for Respondents, The Capitol, Albany, New York 12224–0341
Towne, Ryan & Partners, P.C., James J. Towne, Jr., of Counsel, Attorneys for Petitioner, 450 New Karner Road, Albany, New York 12205
Eric T. Schneiderman, Attorney General of the State of New York, Omar J. Siddiqi, of Counsel Attorney for Respondents, The Capitol, Albany, New York 12224–0341
Denise A. Hartman, J.
By order to show cause dated January 5, 2018, petitioner Mackey Automotive LLC seeks a stay pursuant to CPLR 7805 prohibiting the enforcement of two determinations by respondent Department of Motor Vehicles imposing concurrent 90–day suspensions of petitioner's license to operate a used car dealership and associated fines, pending resolution of the underlying CPLR Article 78 petition seeking to vacate those determinations. The motion is denied.
In Case No. 3DE5–05677, after a hearing required by law, the administrative law judge sustained charges that petitioner had failed to provide an odometer reading on a bill of sale for a 2004 Hummer H2, incorrectly stated the vehicle's mileage on the MV–50 form, failed to inspect the vehicle in violation of 15 NYCRR 78.13 (c), and falsely certified that the vehicle was "in condition and repair to render, under normal use, satisfactory and adequate service upon the public highway," in violation of Vehicle and Traffic Law § 417. The administrative law judge imposed a 90–day suspension of petitioner's license to operate a used car dealership, and $750 in fines. He did not specify which penalties related to which charges.
In Case No. 3DE6–03516, after a hearing required by law, the same administrative law judge sustained charges that petitioner had violated Vehicle and Traffic Law § 417 when it certified that a 2005 Jeep Grand Cherokee was "in condition ... to render adequate service upon the public highway," had failed to perform the inspection required by 15 NYCRR 78.13 (c), and had displayed its official dealer sign in violation of 15 NYCRR 78.26 (d). The administrative law judge imposed a 90–day suspension of petitioner's license to operate a used car dealership for the first and second charges (to run concurrently with the other suspension), and a total of $2,200 in fines. The Administrative Appeals Board confirmed both determinations
To obtain a stay of enforcement pursuant to CPLR 7805, as with a preliminary injunction, the movant must "show that it has a likelihood of success on the merits, it will suffer irreparable harm if the relief is not granted and the equities weigh in its favor ( STS Steel, Inc. v. Maxon Alco Holdings, LLC , 123 AD3d 1260, 1261 [3d Dept 2014] ; Matter of Riccelli Enters., Inc. v. State of NY Workers' Compensation Bd. , 117 AD3d 1438, 1439 [4th Dept 2014] ; Matter of Albany Basketball & Sports Corp. v. City of Albany , 39 Misc 3d 1204[A] [Sup Ct, Albany County 2013] ). To prevail in this proceeding, petitioner would have to show that substantial evidence in the record did not support the determinations (see Vehicle and Traffic Law § 415 [9–a ]; CPLR 7803 [4 ] Tleiji v. Adduci , 194 AD2d 1058, 1059 [3d Dept 1993] ), or that respondents' interpretation of the applicable statutes and regulations "is irrational or contrary to the plain language" of the statutes and regulations (Matter of Flerx v. DiNapoli , 127 AD3d 1449, 1450 [3d Dept 2015], lv denied 26 NY3d 901 [2015] ). Petitioner has not demonstrated that it is likely to succeed on the merits.
Vehicle and Traffic Law § 417 mandates that a dealer who sells a used motor vehicle must execute and give to the buyer a certification that the vehicle "is in condition and repair to render, under normal use, satisfactory and adequate service upon the public highway at the time of delivery." "[D]elivery of a false certificate knowing the same to be false or misleading or without making an appropriate inspection to determine whether the contents of such certificate are true shall constitute a violation of this section. The delivery of a false certificate shall raise presumption [sic] that such certificate was issued without an appropriate inspection." (Id. ) Department of Motor Vehicles regulations mandate that all motor vehicles undergo an inspection covering 18 different parts and systems, including brakes ( 15 NYCRR 78.13 [c] ).
Evidence was presented to the administrative law judge that, at the time of delivery to the customers, the 2004 Hummer H2's rear brakes were worn to the rotors, and the 2005 Jeep Grand Cherokee's emergency brake was inoperative, rendering the vehicles inadequate and unsatisfactory for driving on the public roads (see Vehicle and Traffic Law § 417 ; Matter of Nazarian v. Jackson, 243 AD2d 916, 917 [3d Dept 1997] ). The condition of the vehicles provided evidence that petitioner issued false certificates in violation of Vehicle and Traffic Law § 417, giving rise to the presumption that petitioner did not perform the inspections required by 15 NYCRR 78.13. Petitioner failed to offer evidence at the hearings that inspections pursuant to 15 NYCRR 78.13 were performed either by itself or the third party to which it sent the vehicles for inspection (see Rayhn v. Martin Nemer Volkswagen Corp. , 77 AD2d 394, 397 [3d Dept 1980], appeal dismissed 53 NY2d 796 [1981] ). Although petitioner offered evidence that safety and emissions inspections pursuant to 15 NYCRR 79.21 were done, it did not offer evidence that such inspections complied with 15 NYCRR 78.13 (see Rayhn , 77 AD3d at 397; Pinelli v. De Paula Chevrolet , 101 AD2d 643, 645 [3d Dept 1984] ). Accordingly, the Court finds that petitioner has not demonstrated a likelihood of success on the merits.
The Court is not insensitive to the harm that the 90–day suspensions will cause petitioner's business. But petitioner has not met the high burden necessary to obtain a preliminary injunction. Moreover, even if balancing the equities were necessary to the Court's determination, they do not weigh clearly in petitioner's favor. Petitioner was found to have failed to perform appropriate safety inspections and to have delivered to two customers vehicles unfit and unsafe for driving. The Court has considerable concerns about allowing petitioner to sell used vehicles that may be unsafe during the pendency of this proceeding. Finally, petitioner's argument that it has never before been suspended is undermined by the administrative law judge's finding that its "Facility Record ... show[ed] numerous Complaints of Used Vehicle Certification."
For the foregoing reasons, it is
Ordered that petitioners' motion to enjoin enforcement of two Department of Motor Vehicles determinations (Case Nos. 3DE5–05677 and 3DE6–03516) pending resolution of this proceeding is denied.
This constitutes the decision and order of the Court. The original decision and order is being transmitted to respondents' counsel. All other papers are being transmitted to the County Clerk for filing. The signing of this decision and order does not constitute entry or filing under CPLR 2220 and counsel is not relieved from the applicable provisions of that rule respecting filing and service.
Papers Considered
1. Order to Show Cause Dated January 5, 2018
2. Notice of Petition and Petition, with Exhibits A—R
3. Affidavit of John Mackey, Dated January 4, 2018, with Exhibit A
4. Affidavit of John Mackey Dated January 10, 2018, with Exhibit A
5. Memorandum of Law in Support of Order to Show Cause
6. Affirmation in Opposition, with Exhibits A—E
7. Memorandum of Law in Opposition
8. Attorney Affidavit in Reply, with Exhibits F—G
9. Reply Memorandum of Law in Support of Order to Show Cause