Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Second DepartmentJun 28, 2004
8 A.D.3d 667 (N.Y. App. Div. 2004)
8 A.D.3d 667778 N.Y.S.2d 900

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Decided June 28, 2004.

Proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Motor Vehicles Appeals Board, dated June 4, 2002, affirming a determination of an Administrative Law Judge, dated June 20, 2001, which found, after a hearing, that the petitioner violated New York City Traffic Rules and Regulations (34 RCNY) § 4-15(b)(9) and Vehicle and Traffic Law § 401(7)(F)(b), and imposed fines and surcharges of $7,300.

Margolis Flanary, LLP, Garden City, N.Y. (Walker G. Flanary III of counsel), for petitioner.

Eliot Spitzer, Attorney-General, New York, N.Y. (Michael S. Belohlavek and Oren L. Zeve of counsel), for respondent.



ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

Contrary to the petitioner's contention, where, as here, summonses are issued for, inter alia, alleged violations of New York City Traffic Rules and Regulations governing overweight vehicles, the applicable and controlling service provision is Vehicle Traffic Law § 385(20-a), not CPLR 311(a)(1) ( see Matter of Sureway Towing, Inc. v. Martinez, A.D.3d [2d Dept, June 14, 2004]).

"Local governments may only exercise those powers expressly granted to them by the State Constitution or the Legislature" ( Sand Hill Assocs. v. Legislature of County of Suffolk, 225 A.D.2d 681, 682-683). Pursuant to Vehicle and Traffic Law § 1600, "[t]he provisions of this chapter shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein and no local authority shall enact or enforce any local law, ordinance, order, rule or regulation in conflict with the provisions of this chapter unless expressly authorized herein." While Vehicle and Traffic Law § 1642(a) lists certain "enumerated subjects" where local laws shall supersede the provisions of the Vehicle and Traffic Law in cities having a population in excess of one million, service of process is not one of such enumerated subjects. Consequently, under the applicable provision of Vehicle and Traffic Law § 385(20-a), service upon the petitioner's driver was effective to obtain personal jurisdiction over the petitioner.

We note that the CPLR governs procedure in civil judicial proceedings ( see CPLR 101). "All civil judicial proceedings shall be prosecuted in the form of an action, except where prosecution in the form of a special proceeding is authorized" (CPLR 103[b]). An administrative proceeding is not an action ( see Matter of Fiedelman v. New York State Dept. of Health, 58 N.Y.2d 80, 82) nor a special proceeding ( see Matter of City of Syracuse v. Public Empl. Relations Bd., 279 A.D.2d 98, 104). Accordingly, the underlying administrative proceeding in this case was not a civil judicial proceeding, and the service provisions of CPLR 311(a)(1) did not apply.

Moreover, judicial review of a determination rendered by an administrative body after a hearing is limited to whether that determination is supported by substantial evidence ( see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 179). Here, the testimony of the traffic officer who issued the summonses regarding the location of the weighing site and his training, accompanied by certificates establishing the accuracy of the scales he used in weighing the petitioner's vehicle, provided a sufficient basis for the determination of the Administrative Law Judge ( see Matter of City Hawk Indus. v. Martinez, 2 A.D.3d 635, 635-636; Matter of Scara-Mix, Inc. v. Martinez, 305 A.D.2d 418; Matter of RD Equip. Leasing Co. v. Adduci, 220 A.D.2d 900, 901-902). As the determination is supported by substantial evidence, we decline to disturb it.

The petitioner's remaining contentions are without merit.


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