| Matter of Scism v Fiala |
| 2014 NY Slip Op 08283 [122 AD3d 1197] |
| November 26, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Louis G. Scism, Petitioner, v Barbara J.Fiala, as Commissioner of Motor Vehicles, Respondent. |
Shafran & Mosley, PC, White Plains (Howard E. Shafran of counsel), forpetitioner.
Eric T. Schneiderman, Attorney General, New York City (Matthew W. Grieco ofcounsel), for respondent.
Clark, J. Proceeding pursuant to CPLR article 78 (transferred to this court by order ofthe Supreme Court, entered in Ulster County) to review a determination of respondentwhich denied petitioner's application for a driver's license.
Petitioner, who accumulated 29 driving-related convictions before having his driver'slicense revoked in 2009, filed an application for relicensing in May 2012. The DriverImprovement Bureau of the Department of Motor Vehicles denied petitioner'sapplication citing 15 NYCRR former 136.5 (a) (3) and (b) (2). Such denial was thereafteraffirmed by the Administrative Appeals Board. Petitioner then commenced this CPLRarticle 78 proceeding against respondent seeking vacatur of the denial of his applicationfor relicensing and an order granting him a driver's license. The proceeding was thenimproperly transferred to this Court by Supreme Court pursuant to CPLR 7804(g).[FN*]
[*2] The pertinent facts here are undisputed. Petitionersubmitted his application for relicensing in May 2012. Along with applications fromother persons who had committed multiple drug- and alcohol-related driving violations,respondent held petitioner's application in abeyance during a period of emergencyrulemaking—beginning in February 2012, three months prior to petitioner'sapplication, and lasting through September 2012—at which point new regulationswere issued that governed petitioner's eligibility for relicensure (see NY Reg,Mar. 13, 2013 at 46). In November 2012, respondent denied petitioner's applicationbased both upon portions of the emergency regulations promulgated to address therelicensing of recidivist drivers and 15 NYCRR former 136.5 (a) (3) and (b) (2).
Petitioner contends that the refusal to reissue his driver's license was animpermissible retroactive application of 15 NYCRR 136.5 (b) (2) due to the fact that hisapplication was held in abeyance until the conclusion of the emergency rulemaking. Wedisagree. "Retroactive statutes are those which impair vested rights or alter pasttransactions or considerations" (Matter of Allied Grocers Coop. v Tax AppealsTrib., 162 AD2d 791, 792 [1990] [citation omitted]). Here, however, petitioner'sdriver's license is not generally viewed as a vested right, but merely a personal privilegesubject to reasonable restrictions and revocation by respondent under her discretionarypowers (see Vehicle and Traffic Law §§ 510 [2] [c]; 1192 [2];Matter of Lap v Axelrod, 95 AD2d 457, 459 [1983], lv denied 61 NY2d603 [1984]). Thus, respondent remained free to apply her most recent regulations whenexercising her discretion in deciding whether to grant or deny petitioner's application forrelicensing. This is especially so in light of the rational, seven-month moratorium placedon all similarly-situated applicants for relicensing—i.e., persons with three ormore alcohol-related driving convictions (see NY Reg, Mar. 13, 2013 at 46;Matter of Alscot Inv. Corp. v Incorporated Vil. of Rockville Ctr., 64 NY2d 921,922 [1985]; compare Matter of Pokoik v Silsdorf, 40 NY2d 769, 771-773[1976]). Furthermore, inasmuch as the revised regulations operated only to nominallychange the effect of petitioner's past acts on his future eligibility to obtain a driver'slicense and was not imposed as punishment but, rather, to promote public safety,respondent's application of 15 NYCRR 136.5 (b) (2) was proper under thesecircumstances (see Matter of St.Clair Nation v City of New York, 14 NY3d 452, 456-458 [2010]; Matter ofMiller v DeBuono, 90 NY2d 783, 790-791 [1997]; see also StateAdministrative Procedure Act § 202 [6]).
Nor do we find respondent's decision to deny petitioner's application for relicensingto be arbitrary and capricious under either the former or the revised regulations. As isrelevant here, 15 NYCRR former 136.5 (b) (2) required that an application forreinstatement of a previously revoked license by an individual who has had "three or fouralcohol- or drug-related driving convictions or incidents [and] one or more seriousdriving offenses," all occurring during "the 25 years preceding the date of the revocableoffense," be denied such a license. As is also relevant, 15 NYCRR former 136.5 (a) (2)(iv) defined one such "[s]erious driving offense" as "20 or more points from anyviolations."
Petitioner was convicted three separate times for driving while ability impaired in2003, [*3]2006 and 2009 (see Vehicle and TrafficLaw § 1192 [1]), all of which constitute alcohol- or drug-related incidentsor convictions for the purposes of 15 NYCRR former 136.5 (b) (2) (see 15NYCRR former 136.5 [a] [1]). Additionally, during the 25-year period preceding thedate of petitioner's most recent revocable offense, which was July 14, 2009, petitioneraccumulated a total of 26 points from violations, amounting to a "serious drivingoffense" (15 NYCRR former 136.5 [a] [2] [iv]). Thus, the former regulations requiredrespondent to deny petitioner's application for relicensing. Likewise, the revisedregulations also require denial where the applicant "has three or four alcohol- ordrug-related driving convictions or incidents in any combination within the 25 year lookback period and, in addition, has one or more serious driving offenses within the 25 yearlook back period" (15 NYCRR 136.5 [b] [2]). Accordingly, respondent's determinationwas not arbitrary and capricious, irrational, affected by an error of law or an abuse ofdiscretion. Petitioner's remaining contentions have been considered and found to bewithout merit.
Peters, P.J., Stein, Rose and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *:"Although transfer wasimproper because the appropriate standard of review is not whether the determination issupported by substantial evidence, we will nevertheless retain the proceeding and resolvethe issues in the interest of judicial economy" (Matter of Mudge v Huxley, 79 AD3d 1395, 1396 [2010];see Matter of Stedronsky v Sobol, 175 AD2d 373, 374 n [1991], lvdenied 78 NY2d 864 [1991]). Thus, our review is limited to whether respondent'sdetermination was arbitrary and capricious, irrational, affected by an error of law or anabuse of discretion (see CPLR 7803 [3]; Matter of Mudge v Huxley, 79AD3d at 1396; Matter of Stedronsky v Sobol, 175 AD2d at 374 n).