Opinion
April 4, 1983
Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the Department of Motor Vehicles, which, after a hearing, found that petitioner had committed a fraud by charging for a part that had not been installed and imposed a $300 civil penalty and revoked petitioner's repair shop license. Petition granted to the extent that the determination is modified, on the law, by vacating the penalty imposed. As so modified, determination confirmed, with costs to respondent, and the matter is remitted to the commissioner for reconsideration of the penalty, which shall in no event exceed a 30-day suspension of petitioner's license and a $500 civil penalty. The determination that petitioner had committed a fraud is supported by substantial evidence (see Matter of Hannon v Cuomo, 52 N.Y.2d 775; 300 Gramatan Ave. Assoc. v State Div. Human Rights, 45 N.Y.2d 176). The record reveals that petitioner did not install the flywheel for which the customer was billed. As to the penalty of revocation, however, we find that insofar as it deprives petitioner of its repair shop license it is "so grave in its impact * * * that it is disproportionate to the misconduct" (see Matter of Pell v Board of Educ., 34 N.Y.2d 222, 234). Accordingly, the commissioner shall reconsider and impose a penalty which shall in no event exceed a 30-day suspension of petitioner's license and a $500 civil penalty (see Rob Tess Rest. Corp. v New York State Liq. Auth., 49 N.Y.2d 874). Damiani, J.P., Titone, Mangano and Boyers, JJ., concur.