SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
March 10, 1969
IN THE MATTER OF HUBERT FOSTER, PETITIONER,
VINCENT L. TOFANY, AS COMMISSIONER OF MOTOR VEHICLES, RESPONDENT
Reynolds, J. Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Greenblott, JJ., concur in memorandum by Reynolds, J.
Proceeding under CPLR article 78 to review and to annul an order of the Commissioner of Motor Vehicles revoking petitioner's motor vehicle operator's license because of his refusal to submit to a chemical blood test (Vehicle and Traffic Law, § 1194). The revocation of petitioner's license must be upheld if supported by substantial evidence (Matter of Story v. Hults, 27 A.D.2d 745, affd. 19 N.Y.2d 936; Matter of Sullivan v. Hults, 27 A.D.2d 746). Here the evidence is sufficient to sustain the findings that the police officer who arrested the petitioner had reasonable grounds to believe petitioner was driving while intoxicated, that the arrest was properly made and that petitioner was requested and refused the prescribed test. There is presented no more than conflicting versions of what transpired and particularly whether petitioner was unconscious when he allegedly was requested and refused to take the blood test. Such questions of fact and credibility are within the commissioner's authority to resolve (Matter of Taylor v. Kelly, 5 A.D.2d 931; Matter of Neet v. Hults, 26 A.D.2d 970; Matter of Shields v. Hults, 26 A.D.2d 971) and we cannot say that he was required to accept petitioner's account of what transpired. Nor do we find any additional grounds advanced requiring a reversal of the commissioner's determination and, accordingly, it is confirmed.
Determination confirmed, without costs.
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