| Matter of Nicholson v Appeals Bd. of Admin. AdjudicationBur. |
| 2016 NY Slip Op 00414 [135 AD3d 1224] |
| January 21, 2016 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Walter Nicholson, Appellant, v AppealsBoard of Administrative Adjudication Bureau et al.,Respondents. |
Kevin P. Sheerin, Mineola, for appellant.
Eric T. Schneiderman, Attorney General, Albany (Jeffrey W. Lang of counsel), forrespondents.
Lahtinen, J.P. Appeal from a judgment of the Supreme Court (Ceresia Jr., J.), enteredJune 4, 2014 in Albany County, which dismissed petitioner's application, in a proceedingpursuant to CPLR article 78, to, among other things, review a determination ofrespondent Department of Motor Vehicles denying petitioner's application for a driver'slicense.
Between 1987 and 2007, petitioner had five alcohol-related drivingconvictions—two for driving while intoxicated and three for driving while abilityimpaired—as well as over a dozen other traffic violations. As a result, his driver'slicense was revoked in 2008. In 2013, he applied for relicensing. The DriverImprovement Bureau of respondent Department of Motor Vehicles denied petitioner'sapplication, and that decision was upheld by respondent Appeals Board ofAdministrative Adjudication Bureau. This CPLR article 78 proceeding ensued. SupremeCourt dismissed the petition and petitioner now appeals.
The regulations of respondent Commissioner of Motor Vehicles, which are notchallenged here (cf. Matter ofAcevedo v New York State Dept. of Motor Vehs., 132 AD3d 112 [2015]), setforth a policy of denying relicensing where the applicant has five or more alcohol-relateddriving convictions (see 15 NYCRR 136.5 [b] [1]). There is an exception in that"the Commissioner shall not be foreclosed from consideration of unusual, extenuatingand compelling [*2]circumstances that may be presentedfor review and which may form a valid basis to deviate from the general policy" (15NYCRR 136.5 [d]). "[O]ur review is limited to whether [the] determination was arbitraryand capricious, irrational, affected by an error of law or an abuse of discretion" (Matter of Scism v Fiala, 122AD3d 1197, 1197 n [2014]; see CPLR 7803 [3]; Matter of Naranjo v Commissionerof Dept. of Motor Vehs., State of N.Y., 116 AD3d 859, 861 [2014]).
Although the initial denial informed petitioner that he could request an exceptionbased on unusual, extenuating or compelling circumstances by submitting suchinformation to the Driver Improvement Bureau, he instead opted for an appeal to theAppeals Board. Petitioner submitted with his appeal a brief statement in which heindicated that he has undergone successful treatment for his alcohol problem and hecontinues to receive support through Alcoholics Anonymous. He further related that he isthe single parent of a 12 year old. In this proceeding, he added that he is also thecaregiver for an elderly parent. We note a lack of documentation or detail regarding hispurported rehabilitation or other current circumstances. In any event, despite someostensibly sympathetic facts, we cannot conclude that the denial of his application wasarbitrary, irrational or an abuse of discretion in light of his dangerous drivinghistory.
McCarthy, Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed, without costs. [Prior Case History: 2014 NY Slip Op 31537(U).]