| Matter of Livulpi v Swarts |
| 2012 NY Slip Op 07673 [100 AD3d 759] |
| November 14, 2012 |
| Appellate Division, Second Department |
| In the Matter of John E. Livulpi, Petitioner, v David J.Swarts et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek andPatrick J. Walsh of counsel), for respondents.
Proceeding pursuant to CPLR article 78 to review a determination of the AdministrativeAppeals Board of the New York State Department of Motor Vehicles dated January 26, 2010,confirming a determination of an Administrative Law Judge dated July 29, 2009, which, after ahearing, found that the petitioner had refused to submit to a chemical test in violation of Vehicleand Traffic Law § 1194, and revoked the petitioner's driver's license.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, with costs.
In order to annul an administrative determination made after a hearing directed by law atwhich evidence is taken, a court must conclude that the record lacks substantial evidence tosupport the determination (see Matter of Kelly v Safir, 96 NY2d 32, 38 [2001];Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale &Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). Substantial evidence is "suchrelevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimatefact" (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180[1978]). " 'The courts may not weigh the evidence or reject the choice made by [an administrativeagency] where the evidence is conflicting and room for choice exists' " (Matter of Berenhausv Ward, 70 NY2d 436, 444 [1987], quoting Matter of Stork Rest. v Boland, 282 NY256, 267 [1940]; see Matter of Hildrethv New York State Dept. of Motor Vehs. Appeals Bd., 83 AD3d 838, 839 [2011]).
The findings of the Administrative Law Judge are supported by substantial evidence (seeMatter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale &Mamaroneck, Westchester County, 34 NY2d at 231-232). The evidence adduced at thehearing demonstrated that the police had reasonable grounds to believe that the petitioner hadbeen driving in violation of Vehicle and Traffic Law § 1192, that the police lawfullyarrested the petitioner, that the police gave the petitioner sufficient warning of the consequencesof refusing to submit to a chemical test, and that the petitioner refused to submit to the chemicaltest (see Vehicle and Traffic [*2]Law § 1194 [2][c]; Matter of Robinson v Swarts,82 AD3d 986 [2011]; Matter ofSharf v New York State Dept. of Motor Vehicles, 74 AD3d 978 [2010]; Matter ofEyrich v Jackson, 267 AD2d 237 [1999]; Matter of Leavy v Commissioner of MotorVehs. of State of N.Y., 141 AD2d 643 [1988]). Eng, P.J., Skelos, Austin and Miller, JJ.,concur.