| Matter of McKevitt v Fiala |
| 2015 NY Slip Op 04649 [129 AD3d 730] |
| June 3, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Dennis J. McKevitt,Respondent, v Barbara J. Fiala et al., Appellants. |
Eric T. Schneiderman, Attorney General, New York, N.Y. (Steven C. Wu andMatthew W. Grieco of counsel), for appellants.
Larkin, Ingrassia & Brown, LLP, Newburgh, N.Y. (John Ingrassia of counsel),for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the NewYork State Department of Motor Vehicles Appeals Board dated February 26, 2013,which affirmed the denial of the petitioner's application for a driver license, the appeal isfrom a judgment of the Supreme Court, Orange County (Bartlett, J.), dated October 16,2013, which, inter alia, granted the petition, annulled the determination, and directed theCommissioner of the New York State Department of Motor Vehicles to issue thepetitioner a valid driver license.
Ordered that the judgment is reversed, on the law, with costs, and the matter isremitted to the Supreme Court, Orange County, for further proceedings consistentherewith.
The petitioner accumulated 24 points on his driving record and was convicted of fouralcohol-related driving offenses before his driver license was revoked in 2007. InFebruary 2012, the petitioner filed an application for a new driver license with the NewYork State Department of Motor Vehicles (hereinafter the DMV). Pending the adoptionof emergency regulations addressing the relicensing of recidivist drivers, the DMV heldthe petitioner's application, along with the applications from other persons with multiplealcohol-related driving violations, in abeyance. In October 2012, after the emergencyregulations became effective, the DMV's Driver Improvement Bureau denied thepetitioner's application, citing the newly amended regulation, 15 NYCRR 136.5 (b) (2).After the denial was affirmed by the DMV Appeals Board, the petitioner commenced thisproceeding pursuant to CPLR article 78 to review the determination. The Supreme Court,inter alia, granted the petition, annulled the determination, and directed theCommissioner of the DMV to issue the petitioner a driver license.
Contrary to the petitioner's contentions, the delay in processing his application for adriver licence was not unlawful, and the denial of the application did not constitute animpermissible retroactive application of the amended regulations (see Matter of Kenny v Fiala,127 AD3d 1359, 1360 [3d Dept 2015]; Matter of Dahlgren v New York State Dept. of Motor Veh., 124AD3d 1400, 1402 [2015]; Matter of Scism v Fiala, 122 AD3d 1197, 1198 [2014]; see generally Matter of St. ClairNation v City of New York, 14 NY3d 452, 457-458 [2010]). Also contrary tothe petitioner's contention, because the regulations were enacted for nonpunitivepurposes, and were [*2]not so punitive in effect as tonegate that nonpunitive intent, the denial of the petitioner's application pursuant to theamended regulations did not constitute a violation of the Ex Post Facto Clause of theUnited States Constitution (see US Const, art I, § 10, cl 1; Smithv Doe, 538 US 84, 92 [2003]; Matter of Scism v Fiala, 122 AD3d at 1198; People v Foster, 87 AD3d299, 306 [2011]).
Accordingly, the Supreme Court should not have granted the petition on the groundthat it was unlawful for the DMV to apply the amended regulations to the petitioner'sapplication. Under the amended regulations, the DMV still maintains discretion to departfrom the general policy when "unusual, extenuating and compelling circumstances" arepresented for review (15 NYCRR 136.5 [d]). In light of its determination, the SupremeCourt did not determine whether it was arbitrary and capricious for the DMV to concludethat the petitioner in this case failed to present such circumstances. Accordingly, weremit the matter to the Supreme Court, Orange County, for such a determination. Skelos,J.P., Dickerson, Miller and Hinds-Radix, JJ., concur.