IN THE MATTER OF PHILIP L. GURNSEY, PETITIONER-APPELLANT,
J. DAVID SAMPSON, EXECUTIVE DEPUTY COMMISSIONER, NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, DEBORAH. DUGAN, CHAIRMAN, NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES APPEALS BOARD, AND NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES ADMINISTRATIVE APPEALS BOARD, RESPONDENTS-RESPONDENTS.
J. PAJAK, ALDEN, FOR PETITIONER-APPELLANT.
T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JEFFREY W. LANG OF
COUNSEL), FOR RESPONDENTS-RESPONDENTS.
PRESENT: CENTRA, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND
from a judgment (denominated order) of the Supreme Court,
Orleans County (James P. Punch, A.J.), entered January 22,
2016 in a proceeding pursuant to CPLR article 78. The
judgment denied the petition.
hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Petitioner commenced this CPLR article 78 proceeding against,
inter alia, the New York State Department of Motor Vehicles
(respondent) seeking to annul the determination denying
petitioner's application for a new driver's license.
Before his license was revoked in 2000, petitioner had
accumulated five alcohol-related driving convictions, and
there was also one incident in which he refused to submit to
a chemical test. In 2014, petitioner applied for a new
license. The application was denied on the ground that
petitioner had "five or more alcohol- or drug-related
driving convictions or incidents in any combination, "
and thus was subject to lifetime revocation (15 NYCRR 136.5
[b] ). In 2015, petitioner pursued an administrative
appeal and sought an exception based on a showing of
"unusual, extenuating and compelling circumstances"
(15 NYCRR 136.5 [d]), and that also was denied.
reject petitioner's contention that the exception
contained in 15 NYCRR 136.5 (d) is unconstitutionally vague.
The void-for-vagueness doctrine employs a "rough idea of
fairness" (Colten v Kentucky, 407 U.S. 104,
110; see Matter of Turner v Municipal Code Violations
Bur. of City of Rochester, 122 A.D.3d 1376, 1377), and
applies to regulations as well as to statutes (see Matter
of Slocum v Berman, 81 A.D.2d 1014, 1015, lv
denied 54 N.Y.2d 602, appeal dismissed 54
N.Y.2d 752). Due process of law requires that a statute or
regulation be sufficiently definite such that persons of
common intelligence need not guess at its meaning (see
Matter of Kaur v New York State Urban Dev. Corp., 15
N.Y.3d 235, 256; Turner, 122 A.D.3d at 1377-1378).
The doctrine "serves not only to assure that citizens
can conform their conduct to the dictates of law but, equally
important, to guide those who must administer the law"
(People v Illardo, 48 N.Y.2d 408, 413; see
Bakery Salvage Corp. v City of Buffalo, 175 A.D.2d 608,
609). On the other hand, the doctrine "does not require
impossible standards of specificity which would unduly weaken
and inhibit a regulating authority... [, ] especially in a
field where flexibility and adaptation of the legislative
policy to varying conditions is the essence of the
program" (Slocum, 81 A.D.2d at 1015).
Commissioner (Commissioner) promulgated 15 NYCRR 136.5
pursuant to her authority to exercise discretion in
determining whether to reissue a driver's license
following a mandatory revocation (see Matter of Acevedo v
New York State Dept. of Motor Vehs., ___ N.Y.3d ___, ___
[May 9, 2017]; see generally Vehicle and Traffic Law
§§ 508 ; 510  [a]). Contrary to
petitioner's contention, the regulation does not give
respondent "unfettered discretion" to deny an
application. Section 136.5 formalized the manner in which the
Commissioner would exercise her discretion by
"ensur[ing] that her discretion is exercised
consistently and uniformly, such that similarly-situated
applicants are treated equally" (Acevedo, ___
N.Y.3d at ___). Additionally, the regulation puts the public
on notice of respondent's general policy with respect to
relicensing a person whose driver's license has been
revoked for multiple alcohol- or drug-related transgressions
(see id. at ___). In petitioner's case, he faces
a lifetime ban because he has at least five such convictions
or incidents, as defined in the regulation (see 15
NYCRR 136.5 [b] ). Nevertheless, the Commissioner reserved
the discretion to deviate from her general policy in
"unusual, extenuating and compelling circumstances"
(15 NYCRR 136.5 [d]). That exception ensures that respondent
has the flexibility to grant an application for relicensing
where extraordinary circumstances render the application of
the general policy inappropriate or unfair (see
Acevedo, ___ N.Y.3d at ___; see generally
Slocum, 81 A.D.2d at 1015). Thus, reading the language
of the challenged exception within the context of the
regulation as a whole, we conclude that 15 NYCRR 136.5 (d) is
not unconstitutionally vague.
further contends that respondent's determination that he
had not demonstrated entitlement to such an exception was
arbitrary and capricious and an abuse of discretion
(see CPLR 7803 ). We also reject that contention.
In seeking an exception under 15 NYCRR 136.5 (d), petitioner
submitted an affidavit in which he averred that he had been
sober for the past seven years, had completed alcohol
treatment programs successfully, had not been convicted of an
alcohol-related driving offense since 1995, and would benefit
from being able to drive approximately 17 miles to his place
of employment. Petitioner's contention is not preserved
for our review insofar as he relies on his daily commute
because he did not raise that ground in his CPLR article 78
petition (see generally Ciesinski v Town of Aurora,
202 A.D.2d 984, 985). Furthermore, petitioner did not submit
with his application any documentation supporting his