| Matter of Kenny v Fiala |
| 2015 NY Slip Op 03007 [127 AD3d 1359] |
| April 9, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Thomas J. Kenny, IV, Appellant, vBarbara J. Fiala, as Commissioner of Motor Vehicles,Respondent. |
James Kleinbaum, Chatham, for appellant.
Eric T. Schneiderman, Attorney General, Albany (Robert M. Goldfarb of counsel),for respondent.
Clark, J. Appeal from a judgment of the Supreme Court (Gilpatric, J.), enteredOctober 25, 2013 in Albany County, which dismissed petitioner's application, in acombined proceeding pursuant to CPLR article 78 and action for declaratory judgment,to, among other things, review a determination of respondent denying petitioner'sapplication for a driver's license.
Petitioner, who has committed a total of 16 driving offenses since 2000, three ofwhich were alcohol-related, had his driver's license revoked in 2010. In July 2012,petitioner applied for relicensing. Pending adoption of emergency regulations addressingthe relicensing of recidivist drivers (see NY Reg, Mar. 13, 2013 at 46),respondent held petitioner's application—along with the applications from otherpersons with multiple alcohol- and drug-related driving violations—in abeyance.In December 2012, after the emergency regulations became effective, respondent deniedpetitioner's application for relicensure citing the newly amended 15 NYCRR 136.5 (a)(3) and (b) (3) (i). The denial was thereafter affirmed by the Administrative AppealsBoard. Petitioner then commenced this hybrid CPLR article 78 proceeding and action fordeclaratory judgment, seeking an order granting him a driver's license and a declarationthat certain regulations are unconstitutional as applied to him or, in the alternative,remittal to respondent for reconsideration under the regulations existing at the time of hisapplication. Supreme Court dismissed petitioner's application without a hearing, andpetitioner now appeals. We affirm.
[*2] Initially, two recent decisions from this Court effectively dispose of petitioner's primaryarguments on appeal (see Matterof Scism v Fiala, 122 AD3d 1197 [2014]; Matter of Berroa v Fiala, 122 AD3d 1209 [2014]). Inparticular, petitioner's contention that respondent impermissibly and retroactively appliedthe amended regulations to his application is without merit (see Matter of Scism vFiala, 122 AD3d at 1198 [respondent "remained free to apply her most recentregulations when exercising her discretion in deciding whether to grant or denypetitioner's application"]; Matter of Berroa v Fiala, 122 AD3d at 1210).Impermissible retroactive application of a statute generally occurs when a vested right isimpaired or a past transaction is altered by such application (see Matter of AlliedGrocers Coop. v Tax Appeals Trib., 162 AD2d 791, 792 [1990]). As this Court hasemphasized, however, "[a] driver's license is not generally viewed as a vested right, butmerely a personal privilege subject to reasonable restrictions" (Matter of Scism vFiala, 122 AD3d at 1198; see Vehicle and Traffic Law§§ 510 [2] [c]; 1192 [2]; Matter of Lap v Axelrod, 95 AD2d457, 459 [1983], lv denied 61 NY2d 603 [1984]). Therefore, respondent waswithin her authority to apply the amended emergency regulations to petitioner'sapplication.
Additionally, although an extensive delay in petitioner's application made in badfaith may be annulled as arbitrary (see Matter of Alscot Inv. Corp. v Incorporated Vil.of Rockville Ctr., 64 NY2d 921, 922 [1985]; Matter of Pokoik v Silsdorf, 40NY2d 769, 773 [1976]), there is no indication of such bad faith here. Importantly,respondent's delayed action applied to all similarly-situated applicants over theseven-month moratorium (see Matter of Scism v Fiala, 122 AD3d at 1198). Notonly was this action within respondent's broad discretion with regard to relicensure(see Vehicle and Traffic Law §§ 510 [5]; 1192 [2]; 15NYCRR 136.1 [a]; see alsoMatter of Dahlgren v New York State Dept. of Motor Veh., 124 AD3d 1400,1401 [2015]), but it was also taken in the furtherance of public safety (see NYReg, Mar. 13, 2013 at 46; Matter of Scism v Fiala, 122 AD3d at 1198).Accordingly, respondent's decision to delay consideration of petitioner's application doesnot indicate a bad faith motive requiring reversal, and we therefore affirm the judgmentof Supreme Court.
Finally, to the extent that the arguments submitted before Supreme Court were purelylegal, that court properly dismissed the petition without a hearing (see Matter ofAkshar v Mills, 249 AD2d 786, 787-788 [1998], lv dismissed 92 NY2d 962[1998]). Petitioner's remaining contentions have been considered and found to bewithout merit.
Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.