Opinion
2012-12-12
In the Matter of Philip M. MANNINO, petitioner, v. DEPARTMENT OF MOTOR VEHICLES OF STATE of New York–TRAFFIC VIOLATIONS DIVISION, respondent.
Young & Young, LLP, Central Islip, N.Y. (Richard W. Young, Sr., of counsel), for petitioner. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Behlolavek, David Lawrence III, and Richard Dearing of counsel), for respondent.
Young & Young, LLP, Central Islip, N.Y. (Richard W. Young, Sr., of counsel), for petitioner. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Behlolavek, David Lawrence III, and Richard Dearing of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.
Proceeding pursuant to CPLR article 78 to review a determination of the Administrative Appeals Board of the New York State Department of Motor Vehicles dated November 30, 2010, confirming a determination of an Administrative Law Judge dated August 12, 2010, which, after a hearing, found that the petitioner had refused to submit to a chemical test in violation of Vehicle and Traffic Law § 1194, and revoked his driver's license.
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
To annul an administrative determination made after a hearing directed by law at which evidence is taken, a court must conclude that the record lacks substantial evidence to support the determination ( see Matter of Kelly v. Safir, 96 N.Y.2d 32, 38, 724 N.Y.S.2d 680, 747 N.E.2d 1280;Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321;Matter of Hildreth v. New York State Dept. of Motor Vehs. Appeals Bd., 83 A.D.3d 838, 839, 921 N.Y.S.2d 137). Substantial evidence is “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” ( 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183;see Matter of Hildreth v. New York State Dept. of Motor Vehs. Appeals Bd., 83 A.D.3d at 839, 921 N.Y.S.2d 137). “ ‘The courts may not weigh the evidence or reject the choice made by [an administrative agency] where the evidence is conflicting and room for choice exists' ” (Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 444, 522 N.Y.S.2d 478, 517 N.E.2d 193, quoting Matter of Stork Rest. v. Boland, 282 N.Y. 256, 267, 26 N.E.2d 247;see Matter of Hildreth v. New York State Dept. of Motor Vehs. Appeals Bd., 83 A.D.3d at 839, 921 N.Y.S.2d 137).
A review of the record demonstrates that the findings of the Administrative Law Judge are supported by substantial evidence ( see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 N.Y.2d at 231–232, 356 N.Y.S.2d 833, 313 N.E.2d 321). The evidence adduced at the hearing demonstrated that the police officer who arrested the petitioner in a parking lot after the petitioner's motor vehicle was involved in an accident had reasonable grounds to believe that the petitioner had been driving in violation of Vehicle and Traffic Law § 1192 and that the officer lawfully arrested the petitioner ( seeVehicle and Traffic Law § 1194[2][c]; Matter of Robinson v. Swarts, 82 A.D.3d 986, 919 N.Y.S.2d 34;Matter of Sharf v. New York State Dept. of Motor Vehicles, 74 A.D.3d 978, 901 N.Y.S.2d 865;Matter of Eyrich v. Jackson, 267 A.D.2d 237, 699 N.Y.S.2d 316;Matter of Leavy v. Commissioner of Motor Vehs. of State of N.Y., 141 A.D.2d 643, 529 N.Y.S.2d 544). The only testimony presented at the administrative hearing was that of the police officer, who arrested the petitioner for a violation of Vehicle and Traffic Law § 1192(3). The officer testified that, although he did not witness the accident or the petitioner in his motor vehicle when the officer arrived on the scene, he was told by witnesses, softball players who were present in the parking lot but were not identified in the police accident report, that the petitioner had been driving his vehicle when the accident occurred. Contrary to the petitioner's contentions, “[h]earsay evidence can be the basis of an administrative determination” (Matter of Gray v. Adduci, 73 N.Y.2d 741, 742, 536 N.Y.S.2d 40, 532 N.E.2d 1268;see Matter of Andresen v. State of N.Y. Dept. of Motor Vehs., 227 A.D.2d 617, 618, 643 N.Y.S.2d 598;Matter of Butler v. Nassau County Civ. Serv. Commn., 175 A.D.2d 159, 161, 572 N.Y.S.2d 50). Further, the officer testified that, at the accident scene, the petitioner admitted that he was the driver of the vehicle ( see Matter of Zwack v. Passidomo, 108 A.D.2d 1009, 485 N.Y.S.2d 155;Matter of Randall v. Passidomo, 101 A.D.2d 670, 475 N.Y.S.2d 894). The petitioner did not testify that he did not make such an admission to the officer ( see15 NYCRR 127.5[b]; Matter of Northland Transp. v. Jackson, 271 A.D.2d 846, 848, 706 N.Y.S.2d 501).
Moreover, in appealing from the Administrative Law Judge's determination, the petitioner did not contest that there was substantial evidence to support the Administrative Law Judge's findings that the police officer gave the petitioner sufficient warning of the consequences of refusing to submit to a chemical test, and that the petitioner refused to submit to the chemical test ( seeVehicle and Traffic Law § 1194[2][c]; Matter of Robinson v. Swarts, 82 A.D.3d 986, 919 N.Y.S.2d 34;Matter of Sharf v. New York State Dept. of Motor Vehicles, 74 A.D.3d 978, 901 N.Y.S.2d 865;Matter of Eyrich v. Jackson, 267 A.D.2d 237, 699 N.Y.S.2d 316;Matter of Leavy v. Commissioner of Motor Vehs. of State of N.Y., 141 A.D.2d 643, 529 N.Y.S.2d 544).
The petitioner's remaining contention is not properly before this Court, as it was not raised in the administrative hearing ( see Matter of Gonzalez v. State Liq. Auth., 30 N.Y.2d 108, 112, 331 N.Y.S.2d 6, 282 N.E.2d 101;Matter of Sharf v. New York State Dept. of Motor Vehicles, 74 A.D.3d 978, 901 N.Y.S.2d 865;Matter of Myles v. Doar, 24 A.D.3d 677, 678, 808 N.Y.S.2d 312;Matter of Ambery v. Board of Trustees of N.Y. City Fire Dept., Art. I–B Pension Fund, 298 A.D.2d 582, 748 N.Y.S.2d 681).