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In Re Kenneth M. Colao, Petitioner v. New York State Department of Motor Vehicles Appeals Board

New York Supreme and/or Appellate Courts Appellate Division, First Department


February 28, 2012

IN RE KENNETH M. COLAO, PETITIONER,
v.
NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES APPEALS BOARD, RESPONDENT.

Matter of Matter of Colao v New York State Dept. of Motor Vehs. Appeals Bd.

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.

Decided on February 28, 2012

Mazzarelli, J.P., Andrias, Catterson, Abdus-Salaam, Manzanet-Daniels, JJ.

Determination of respondent, dated August 20, 2010, which, after a hearing, suspended petitioner's driver's license for 31 days and imposed a $180 fine, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Saliann Scarpulla, J.], entered March 24, 2011), dismissed, without costs.

Respondent's determination that petitioner violated Vehicle & Traffic Law § 1180(d) by operating his vehicle in excess of 81 miles per hour in a 35 mile-per-hour zone is supported by substantial evidence. The ticketing officer testified that when he clocked petitioner's vehicle, it was traveling more than 81 mph in a 35-mph zone. Furthermore, at the time he ticketed petitioner, all of the signs in the area stated that the speed limit was 35 mph. Although petitioner submitted photographs showing that the signs stated that the speed limit was 50 mph, petitioner testified that he had taken the photographs at least one year after he was ticketed for speeding. There exists no basis on which to disturb the Administrative Law Judge's decision to credit the officer's testimony, including his testimony that he spoke with an official at the Department of Transportation and was told that the speed-limit signs in the subject area had recently been changed from 35 mph to 50 mph (see Matter of Nelke v Department of Motor Vehs. of the State of N.Y., 79 AD3d 433, 434 [2010]; see also Matter of Gray v Adduci, 73 NY2d 741, 742 [1988]).

Moreover, the evidence submitted by petitioner in connection with his administrative appeal was properly rejected. The evidence had not been considered by the ALJ as required by 15 NYCRR 126.2(g), which bars the Appeals Board from considering evidence that was not submitted at the hearing.

We have reviewed petitioner's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 28, 2012

CLERK

20120228

© 1992-2012 VersusLaw Inc.



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