SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
June 19, 1969
IN THE MATTER OF FRANK SLIMACK, RESPONDENT,
VINCENT L. TOFANY, AS COMMISSIONER OF MOTOR VEHICLES, APPELLANT
Appeal from judgment of Cayuga Special Term annulling determination of Commissioner which revoked operator's license.
Del Vecchio, J. P., Marsh, Gabrielli, Moule and Henry, JJ.
Memorandum: The denial by the Hearing Referee of the motion by petitioner's attorney to dismiss the charge that petitioner refused to submit to a chemical test to determine the alcoholic content of his blood, by reason of a Deputy Sheriff's failure to appear on the first hearing date, and the Referee's adjournment of the matter to a later date, did not constitute an abuse of discretion and his rulings were not arbitrary and capricious.
Judgment unanimously reversed, without costs, and petition dismissed.
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