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D'Antonio v. State of New York Dep't of Motor Vehicles

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


May 18, 2010

IN THE MATTER OF DANIEL P. D'ANTONIO, PETITIONER,
v.
STATE OF NEW YORK DEPARTMENT OF MOTOR VEHICLES, RESPONDENT.

Proceeding pursuant to CPLR article 78 to review a determination of the State of New York Department of Motor Vehicles Appeals Board dated October 3, 2008, which affirmed a determination of an administrative law judge dated February 7, 2008, made after a hearing, that the petitioner violated New York City Traffic Rules and Regulations (34 RCNY) § 4-04(b)(1), and imposed a penalty.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, DANIEL D. ANGIOLILLO and ARIEL E. BELEN, JJ.

(Index No. 910/09)

DECISION & JUDGMENT

ADJUDGED that the determination dated October 3, 2008, is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

The determination that the petitioner violated New York City Traffic Rules and Regulations (34 RCNY) § 4-04(b)(1) is supported by substantial evidence and must be confirmed (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179; Matter of Resciniti v Department of Motor Vehs. of State of N.Y., 255 AD2d 589; Matter of Ballen v Commissioner of Motor Vehs., 147 AD2d 560, 561). The petitioner's challenge to the administrative determination rests upon an issue of credibility which was primarily for the fact-finder to resolve (see Matter of Berenhaus v Ward, 70 NY2d 436, 444-445; Matter of Fischer v Appeals Bd. of N.Y. State Dept. of Motor Vehs., 49 AD3d 643, 644; Matter of J. Bruno Sons, Inc. v Martinez, 15 AD3d 485, 486; Matter of Kahn v State of N.Y. Dept. of Motor Vehs., 134 AD2d 594).

The petitioner's remaining contentions are either not properly before this Court or without merit.

RIVERA, J.P., FLORIO, ANGIOLILLO and BELEN, JJ., concur.

20100518

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