| Matter of Robinson v Swarts |
| 2011 NY Slip Op 02014 [82 AD3d 986] |
| March 15, 2011 |
| Appellate Division, Second Department |
| In the Matter of Steven Robinson, Petitioner, v David J.Swarts, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohavek andMarion R. Buchbinder of counsel), for respondent.
Proceeding pursuant to CPLR article 78 to review a determination of the AdministrativeAppeals Board of the New York State Department of Motor Vehicles dated August 25, 2009,confirming a determination of an administrative law judge, dated August 25, 2008, which, after ahearing, found that the petitioner had refused to submit to a chemical test in violation of Vehicleand Traffic Law § 1194, and revoked his driver's license.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, with costs.
The record demonstrates that the findings of the administrative law judge are supported bysubstantial evidence (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 ofTowns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231-232 [1974]; Matter of Sharf v New York State Dept. ofMotor Vehicles, 74 AD3d 978 [2010]). The evidence adduced at the hearingdemonstrated that the police had reasonable grounds to believe that the petitioner had beendriving in violation of Vehicle and Traffic Law § 1192, that the police lawfully arrested thepetitioner, that the police gave the petitioner sufficient warning of the consequences of refusingto submit to a chemical test, and that the petitioner refused to submit to the chemical test(see Vehicle and Traffic Law § 1194 [2] [c]; Matter of Sharf v New York StateDept. of Motor Vehicles, 74 AD3d at 978; Matter of Liebel v Jackson, 261 AD2d474 [1999]). The variance between the testimony of the arresting officer and that of the petitionerpresented an issue of credibility to be resolved by the administrative law judge (see generallyMatter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]; Matter of Eyrich vJackson, 267 AD2d 237 [1999]; Matter of Galante v Commissioner of Motor Vehs. ofState of N.Y., 253 AD2d 763, 764 [1998]). Skelos, J.P., Eng, Belen and Lott, JJ., concur.