Opinion
1155 TP 17-00857.
11-09-2017
In the Matter of Steven J. MAROCCIA, Petitioner, v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, Respondent.
Kurt D. Schultz, Utica, for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Robert M. Goldfarb of Counsel), for Respondent.
Kurt D. Schultz, Utica, for Petitioner.
Eric T. Schneiderman, Attorney General, Albany (Robert M. Goldfarb of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM:Petitioner, the operator of a motor vehicle dealership and inspection station, commenced this CPLR article 78 proceeding challenging those parts of respondent's determination finding that he violated Vehicle and Traffic Law § 303(e)(3) and revoking his certification as a vehicle inspector and his facility's license to perform inspections. Contrary to petitioner's contention, substantial evidence supports respondent's determination that he violated section 303(e)(3) (see Matter of A & U Auto Repair v. New York State Dept. of Motor
Vehs., 135 A.D.3d 856, 857, 24 N.Y.S.3d 342 [2d Dept.2016] ; Matter of Falbo v. Fialo, 108 A.D.3d 1228, 1229, 968 N.Y.S.2d 924 [4th Dept.2013] ; see generally 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180–181, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ), i.e., that he engaged in fraud by arranging for the use of an electronic "simulator" to obtain an inspection certificate for a vehicle that had not legitimately passed the requisite emissions inspection (see Matter of DeMarco v. New York State Dept. of Motor Vehs., 150 A.D.3d 1671, 1672–1673, 56 N.Y.S.3d 663 [4th Dept.2017] ; see generally Matter of Khan Auto Serv., Inc. v. New York State Dept. of Motor Vehs., 123 A.D.3d 1258, 1258–1260, 999 N.Y.S.2d 237 [3d Dept.2014] ). Petitioner's testimony denying knowledge that a simulator had been used by the person who performed the emissions inspection merely presented an issue of credibility that the Administrative Law Judge was entitled to resolve against him (see DeMarco, 150 A.D.3d at 1673, 56 N.Y.S.3d 663 ; JLM Auto Repair v. Martinez, 309 A.D.2d 503, 504, 765 N.Y.S.2d 241 [1st Dept.2003] ; see generally Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443–444, 522 N.Y.S.2d 478, 517 N.E.2d 193 [1987] ). Contrary to petitioner's further contention, the penalty of revocation is not "so disproportionate to the offense as to be shocking to one's sense of fairness" (Matter of Pell v. Board of Educ. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 237, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ; see Matter of Lynch v. New York State Dept. of Motor Vehs. Appeals Bd., 125 A.D.3d 1326, 1327, 6 N.Y.S.3d 192 [4th Dept.2015] ; Matter of Watson v. Fiala, 101 A.D.3d 1649, 1651, 957 N.Y.S.2d 523 [4th Dept.2012] ), particularly given that petitioner had previously been disciplined for similar misconduct in performing emissions inspections (see Matter of Somma v.
Jackson, 268 A.D.2d 763, 764–765, 704 N.Y.S.2d 156 [3d Dept.2000] ; Matter of A & F Gulf Serv. v. Jackson, 260 A.D.2d 474, 474, 686 N.Y.S.2d 724 [2d Dept.1999] ).
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by an order of the Supreme Court, Oneida County [Samuel D. Hester, J.], entered October 24, 2014) to review a determination of respondent. The determination revoked petitioner's certification to perform New York State motor vehicle inspections.
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.