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In re Florio

Supreme Court of New York, Second Department

May 15, 2013

In the Matter of John Florio, petitioner,
v.
New York State Department of Motor Vehicles, respondent. Index No. 80177/12

Jeffrey Ziff and Associates, P.C., Brooklyn, N.Y. (William Ziff of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and David Lawrence III of counsel), for respondent.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, SANDRA L. SGROI, JEFFREY A. COHEN, JJ.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Motor Vehicles Appeals Board, dated May 24, 2012, confirming a determination of an Administrative Law Judge, dated July 18, 2011, which, after a hearing, found that the petitioner had violated Vehicle and Traffic Law § 1129(a) and suspended the petitioner's operating privileges for ninety days.

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

At the hearing before an administrative law judge, Police Officer Tomelo Shaw testified that at 5:25 a.m. on December 21, 2010, he was travelling eastbound at approximately 50 to 60 miles per hour on the upper level of the Verrazano-Narrows Bridge. Officer Shaw testified that he observed the petitioner, who was also traveling eastbound on the upper level of the bridge, following another vehicle with approximately one car length separating the petitioner's vehicle and the vehicle in front of him. The petitioner followed the vehicle in front of him at that distance for approximately 2/10 miles before Officer Shaw stopped the petitioner and issued him a summons for following too closely in violation of Vehicle and Traffic Law § 1129(a).

This Court's review of the determination of the New York State Department of Motor Vehicles Appeals Board that the petitioner violated the Vehicle and Traffic Law is limited to whether or not there was substantial evidence to support its determination, substantial evidence being defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact, and is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt' " (Matter of Ridge Rd. Fire Dist. v Schiano, 16 N.Y.3d 494, 499, quoting 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 N.Y.2d 176, 180-181; see Matter of Sherwyn Toppin Mkt. Consultants, Inc. v New York State Liq. Auth., 103 A.D.3d 648). Contrary to the petitioner's contention, the finding that he violated Vehicle and Traffic Law § 1129(a) is supported by substantial evidence (see Matter of Rosenhauch v Swarts, 85 A.D.3d 1187; Matter of Vaeth v New York State Dept. of Motor Vehs., 83 A.D.3d 460; Matter of Gorman v New York State Dept. of Motor Vehs., 34 A.D.3d 1361; Matter of Cotugno v Commissioner of Motor Vehs., 304 A.D.2d 1030; Matter of Boggia v Murphy, 212 A.D.2d 931).

MASTRO, J.P., RIVERA, SGROI and COHEN, JJ., concur.


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