Opinion
1251 TP 18–00885
11-16-2018
In the Matter of Joseph A. SARCINELLI, Doing Business as American Auto World, Inc., Petitioner, v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES and New York State Department of Motor Vehicles Appeal Board, Respondents.
MCGRATH LAW FIRM, PLLC, KENMORE (PETER MCGRATH OF COUNSEL), FOR PETITIONER. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF COUNSEL), FOR RESPONDENTS.
MCGRATH LAW FIRM, PLLC, KENMORE (PETER MCGRATH OF COUNSEL), FOR PETITIONER.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF COUNSEL), FOR RESPONDENTS.
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 78 seeking to annul a determination that revoked his automobile dealer registration and imposed a civil penalty. We conclude that the determination is supported by substantial evidence and we therefore confirm it (see Matter of T's Auto Care, Inc. v. New York State Dept. of Motor Vehs. Appeals Bd., 15 A.D.3d 881, 881, 789 N.Y.S.2d 582 [4th Dept. 2005] ; see also Matter of Frank J. Marianacci, Inc. v. Reardon, 156 A.D.3d 1422, 1423, 68 N.Y.S.3d 258 [4th Dept. 2017] ; see generally CPLR 7803[4] ; Matter of Ridge Rd. Fire Dist. v. Schiano, 16 N.Y.3d 494, 499, 922 N.Y.S.2d 249, 947 N.E.2d 140 [2011] ). Eleven of the 14 charges against petitioner arose from the sale of two repossessed vehicles by petitioner's father. Petitioner does not dispute that those sales were improper and resulted in violations of the Vehicle and Traffic Law and applicable regulations. Moreover, contrary to petitioner's contention, the hearing testimony and the documents entered in evidence constituted substantial evidence supporting the conclusion that petitioner's father was acting as petitioner's agent when engaging in those transactions. Additionally, we conclude that the determination with respect to the remaining three charges, alleging violations of 15 NYCRR 78.15(a) and 15 NYCRR 78.25(b), is supported by substantial evidence.
Finally, petitioner failed to preserve for our review his further contention that he was deprived of a fair hearing "inasmuch as he did not raise an objection on that ground before the Administrative Law Judge" ( Matter of Gorman v. New York State Dept. of Motor Vehs. , 34 A.D.3d 1361, 1361, 824 N.Y.S.2d 526 [4th Dept. 2006] ; see Matter of Khan Auto Serv., Inc. v. New York State Dept. of Motor Vehs. , 123 A.D.3d 1258, 1260, 999 N.Y.S.2d 237 [3d Dept. 2014] ; see also Matter of Khan v. New York State Dept. of Health , 96 N.Y.2d 879, 880, 730 N.Y.S.2d 783, 756 N.E.2d 71 [2001] ).