Opinion
January 17, 1962
This is a proceeding pursuant to article 78 of the Civil Practice Act for the review of a determination of the Commissioner of Motor Vehicles revoking petitioner's motor vehicle dealer's license. On September 16, 1960 petitioner, located in Brooklyn, sold a car to Gerd Jenert, a young soldier, who had just returned to this country from overseas duty and who was stationed at Fort Hamilton in Brooklyn. Jenert purchased the car by trading in his old car and financing the balance under a retail installment sales contract to be carried by the American Mutual Finance Company. Jenert was not given a copy of this contract on the day he purchased the car. As part of the transaction, Jenert was charged $20 for delivery of his car to him in Jersey City by the Queens Motor Delivery, Inc. The purpose of this procedure was to avoid paying the New York City sales tax on the purchase of the automobile. Although he signed a receipt acknowledging delivery in Jersey City, in fact Jenert took possession on petitioner's lot in Brooklyn and drove away using, at petitioner's salesman's direction, his army license plates from his old car. Queens Motor Delivery, Inc., did not move the car at all. Jenert was picked up by the military police for improper registration. An investigation followed and a hearing was held before the Commissioner as a result of which the Commissioner revoked petitioner's dealer license (1) for violating section 415 (subd. 9, par. e) of the Vehicle and Traffic Law in that it violated the Motor Vehicle Retail Installment Act, and (2) for violating section 415 (subd. 9, par. c) of the Vehicle and Traffic Law in that it fraudulently imposed a charge of $20 as a transportation fee in connection with the sale of the car. Petitioner first contends that it did not commit a violation of section 415 (subd. 9, par. e) because the only finding is that it did not deliver an installment sale contract on the day when the purchase was made while subdivision 3 of section 302 Pers. Prop. of the Personal Property Law requires that the "seller shall deliver to the buyer, or mail to him" a copy of the contract. Thus petitioner argues since there is no proof or finding that it did not mail a copy to Jenert at his home address in California, there is no basis in law for this part of the Commissioner's determination. We agree. Subdivision 3 of section 302 specifically enumerates two alternative methods of compliance and thus the Commissioner's investigations and findings should have covered this second alternative. Petitioner also contends that it did not violate section 415 (subd. 9, par. c) because Jenert was aware of the purpose, i.e., to avoid the city sales tax, and the city in its regulations condoned such avoidance. In our view, on the present record, the Commissioner could properly find a violation of this section. We feel the fact that no car transportation ever took place is controlling. Not only was Jenert charged for transportation that never took place but the City of New York was improperly deprived of its sales tax receipts. While we are mindful that Jenert was a party to the planned avoidance of the tax and the city's regulations are permissive of such avoidance, we cannot condone the complete disregard of the terms of such regulations or the charge to Jenert of a fictitious service that was never rendered, and we agree with the Commissioner's finding that petitioner is responsible therefor. We feel, however, that considering the violation we have found to have been established the sanction imposed by the Commissioner is inordinately disproportionate to the offenses involved as to be "shocking to one's sense of fairness" ( Matter of Stolz v. Board of Regents, 4 A.D.2d 361, 364; Civ. Prac. Act, § 1296, subd. 5-a). Determination modified in accordance herewith and the punishment imposed reduced from revocation of petitioner's license to suspension for a period of 15 days from notice of entry of the order herein. As so modified, determination confirmed, without costs. ( Matter of Mitthauer v. Patterson, 8 N.Y.2d 37, 42; Civ. Prac. Act, § 1296, subd. 5-a.) Settle order. Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ., concur.