2016–06976 Index No. 31662/16
Law Office of Peter A. Hurwitz, PLLC, New City, NY, for petitioner. Eric T. Schneiderman, Attorney General, New York, N.Y. (Andrew W. Amend and Mark H. Shawhan of counsel), for respondent.
Law Office of Peter A. Hurwitz, PLLC, New City, NY, for petitioner.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Andrew W. Amend and Mark H. Shawhan of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & JUDGMENTProceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Motor Vehicles Administrative Appeals Board dated March 29, 2016, affirming a determination of an administrative law judge dated March 10, 2015, which, after a hearing, found that the petitioner violated Vehicle and Traffic Law §§ 1146(a) and 1211(a), and suspended his driver license for one year. By order of the Supreme Court, Rockland County (Sherri L. Eisenpress, J.), dated June 24, 2016, the proceeding was transferred to this Court and enforcement of the suspension of the petitioner's driver license was stayed pending determination of the proceeding.
ADJUDGED that the petition is granted, on the law, without costs or disbursements, to the extent that so much of the determination dated March 29, 2016, as affirmed the penalty imposed is vacated, the petition is otherwise denied, the determination dated March 29, 2016, is otherwise confirmed, the proceeding is otherwise dismissed on the merits, and the matter is remitted to the Commissioner of Motor Vehicles for the imposition of a new penalty which shall not exceed a suspension of the petitioner's driver license for a period of 60 days.
The finding that the petitioner violated Vehicle and Traffic Law §§ 1146(a) and 1211(a) was supported by substantial evidence (see Matter of Wagner v. Fiala, 113 A.D.3d 694, 695, 978 N.Y.S.2d 699 ; Matter of Montagnino v. Fiala, 106 A.D.3d 1090, 1091, 966 N.Y.S.2d 161 ).
However, we must remit the matter for the Commissioner of Motor Vehicles to impose a new penalty. "An administrative penalty must be upheld unless it 'is so disproportionate to the offense ... as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law" ( Matter of Kreisler v. New York City Tr. Auth., 2 N.Y.3d 775, 776, 780 N.Y.S.2d 302, 812 N.E.2d 1250, quoting 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, 237, 356 N.Y.S.2d 833, 313 N.E.2d 321 ; see Matter of Bolt v. New York City Dept. of Educ., 30 N.Y.3d 1065, 69 N.Y.S.3d 255, 91 N.E.3d 1234 ). This Court has no discretionary authority or interest of justice jurisdiction to review the penalty imposed in a CPLR article 78 proceeding (see Matter of Ellis v. Mahon, 11 N.Y.3d 754, 755, 865 N.Y.S.2d 589, 895 N.E.2d 518 ). Here, under the unique facts and circumstances of this particular case, the penalty imposed of a one-year suspension of the petitioner's driver license was so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law (see Matter of Truskolaski v. Passidomo, 123 A.D.2d 705, 507 N.Y.S.2d 70 ; Matter of Davidson v. Melton, 55 A.D.2d 799, 389 N.Y.S.2d 661 ; cf. Matter of Cervoni v. Commissioner of N.Y. State Dept. of Motor Vehs., 96 A.D.3d 742, 945 N.Y.S.2d 725 ; Matter of Wright v. Commissioner of N.Y. State Dept. of Motor Vehs., 189 A.D.2d 767, 592 N.Y.S.2d 408 ; Matter of Fazzone v. Adduci, 155 A.D.2d 540, 547 N.Y.S.2d 398 ). Accordingly, we remit the matter to the Commissioner of Motor Vehicles for the imposition of a new penalty not to exceed a suspension of the petitioner's driver license for a period of 60 days, as that constitutes the maximum penalty the record will sustain (see Rob Tess Rest. Corp. v. New York State Liq. Auth., 49 N.Y.2d 874, 875–876, 427 N.Y.S.2d 936, 405 N.E.2d 181 ; Matter of Mupic Liqs. v. New York State Liq. Auth., 212 A.D.2d 793, 794, 623 N.Y.S.2d 301 ).
The petitioner's remaining contentions are unpreserved for review.
LEVENTHAL, J.P., HINDS–RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.