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In re Seon

Supreme Court of New York, First Department

March 29, 2018

In re Wayne Seon, Petitioner,
The New York State Department of Motor Vehicles, et al., Respondents.

          Armienti DeBellis Guglielmo & Rhoden LLP, New York (Mohammad M. Haque of counsel), for petitioner.

          Eric T. Schneiderman, Attorney General, New York (Judith N. Vale of counsel), for respondents.

          Tom, J.P., Mazzarelli, Andrias, Oing, Singh, JJ.

         In this proceeding brought pursuant to CPLR article 78 (transferred to this Court by order, Supreme Court, Bronx County [Kenneth L. Thompson, Jr., J.], entered on or about October 3, 2016), to annul the determination of respondent New York State Department of Motor Vehicles (DMV), dated March 28, 2016, which, after a hearing, upheld the suspension of petitioner's driver's license for six months based on a violation of Vehicle and Traffic Law § 1146, the petition is granted, without costs, the determination of DMV is annulled and vacated, and petitioner's driver's license reinstated.

         This proceeding arises out of a summons issued to petitioner, a New York City Transit bus driver, for allegedly failing, in violation of Vehicle and Traffic Law section 1146(c), to "exercise due care to avoid colliding" with an 88-year-old pedestrian, causing the pedestrian's death. A hearing was held to adjudicate the summons, at which Charlie Viera, the investigating officer, who is an accident reconstruction specialist, and petitioner both testified. The only exhibits submitted into evidence by DMV were two accident reports, one prepared at the scene and one prepared a month later by Viera, after the pedestrian died, and a witness statement provided by petitioner. Viera was not assigned to the matter until after the pedestrian's death.

         According to the report prepared at the scene, the collision occurred on the evening of November 13, 2014, at the intersection of Vyse Avenue and East 174th Street in the Bronx. The bus was making a right turn onto Vyse Avenue, with a green light, and the pedestrian was walking across Vyse Avenue, in the crosswalk, with the walk signal. The bus "had front tires already through the crosswalk when [the pedestrian] made contact, becoming pinned under the passenger side door of the bus behind the front wheel." According to the report prepared by Viera after the pedestrian died and he was assigned the investigation, the pedestrian was admitted to St. Barnabas Hospital and died there "as a result of his injuries." The report does not explain on what basis Viera believed that the pedestrian's death, over one month after the accident, was directly caused by the accident. Further, the report states that at the scene of the accident his injuries, which were to his legs, "were not considered life threatening."

         Viera's direct testimony largely consisted of his reading or summarizing the contents of the reports. He concluded that petitioner "struck the pedestrian with the front right side of the bus, running over the legs of the pedestrian with the front passenger's side tire." Although Viera testified that the pedestrian "suffered a severe leg injury" and "was transported by EMS to St. Barnabas where he later died as a result of his injuries, " he did not identify on what basis he concluded that the injury was severe or that, as implied, the pedestrian's death could be linked to the accident. On cross-examination, Viera acknowledged that, when the accident occurred, it was nighttime and it was raining heavily, and the crosswalk was very poorly lit. He further admitted that the pedestrian was wearing a hoodie and carrying an open umbrella, and that these things could have obstructed his vision. As for the injury, Viera testified that the pedestrian's death "was determined complication from the collision of the accident [sic]." Again, however, he did not explain who determined this. Further, he conceded that he did not know which part of the pedestrian's leg had been impacted, and that it could have possibly been a foot. Injury to a foot, he acknowledged, is not generally considered life threatening. Finally, Viera stated that he did not read any medical reports, and that he did not know whether there were "other medical complications" that caused the pedestrian to die.

         Petitioner testified that as he made his right hand turn onto Vyse Avenue, a one-way street, he noticed parked cars on both sides of the street, and no pedestrians in the crosswalk. He scanned his mirrors on the left and right side of the bus to make sure that he didn't hit any pedestrians or parked cars.

         After scanning his mirrors, he heard a thump on the right side of the bus, by the front door. He secured the bus, then stepped out, and saw the pedestrian "laying on the side of the tire, just behind the tire itself, wearing a black hoodie (with the hood over his head) and a big, large... black umbrella." Petitioner stated that he did not take any drugs for 24 hours before the accident, and that 24 hours after the accident, he tested negative for drugs and alcohol.

         The Administrative Law Judge found that the charge had been established by clear and convincing evidence that "the motorist failed to exercise due care and violated 1146C [sic] of the Vehicle and Traffic Law." The Administrative Law Judge imposed a fine of $150 and, noting that petitioner had no relevant convictions in the past 18 months, and "given the lighting conditions, the weather conditions, the motorist's record in the last 18 months, " his license would be suspended for 75 days "as per statute." The Administrative Law Judge did not mention the pedestrian's death in declaring that petitioner violated Vehicle and Traffic Law § 1146, other than to note the death in fashioning a penalty. The following day DMV sent petitioner an order of suspension, stating that his license would be suspended for six months pursuant to Vehicle and Traffic Law § 510.2 for failure to exercise due care with serious physical injury resulting. Petitioner appealed to the Traffic Violations Bureau Appeals Board of DMV, which upheld the determination.

         Petitioner commenced this article 78 proceeding, arguing that neither substantial evidence nor clear and convincing evidence supports the charge that he failed to exercise due care and violated Vehicle and Traffic Law § 1146(c); that his due process rights were violated because the admitted evidence was not provided to him prior to or during his hearing; and that his due process rights were further violated when, subsequent to affirmance by the Appeals Board, the DMV imposed a suspension of "at least 177 days" which was unconstitutionally vague. The court stayed the suspension and transferred the proceeding to this Court for substantial evidence review.

         This Court has described substantial evidence as a "minimal standard, " constituting a "low threshold, " and requiring less than "a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt" (Matter of Shuman v New York State Racing & Wagering Bd., 40 A.D.3d 385, 385 [1st Dept 2007] [internal quotation marks omitted]). "[A]s a burden of proof, it demands only that a given inference is reasonable and plausible, not necessarily the most probable, " and "the courts may not weigh the evidence or reject the conclusion of the administrative agency where the evidence is conflicting and room for choice exists" (id. at 386 [internal quotation marks and emphasis omitted]). Petitioner acknowledges that substantial evidence is the standard of review in this case, but insists that it must be applied in light of the standard of review that the Administrative Law Judge was required to apply in the DMV proceeding. That standard was one of clear and convincing evidence (Vehicle and Traffic Law § 227[1]). In response, DMV cites Matter of Williams v Perales (156 A.D.2d 697');">156 A.D.2d 697 [2d Dept 1989]). In that case, which dealt with a violation of the rules governing food stamps, the court stated that "[a]lthough the applicable administrative standard of review in determining whether a local agency has established an intentional program violation is clear and convincing evidence, ' the proper judicial standard of review of the Commissioner's determination is whether the determination is based on substantial evidence" (156 A.D.2d at 698 [internal citation omitted]).

         This Court does not appear to have addressed the issue directly. However, other Second Department cases suggest that, notwithstanding Matter of Williams, the Appellate Division is not required to ignore the underlying standard of evidence when conducting a substantial evidence review pursuant to CPLR 7804(g). For example, in Matter of Kaplowitz v Jackson (267 A.D.2d 239, 239-240 [2d Dept 1999]), the Court, in finding that a determination by DMV that the petitioner was guilty of speeding was supported by substantial evidence, stated "that in finding clear and convincing evidence that a traffic infraction had been committed, the Administrative Law Judge properly relied upon the results of radar testing and upon the arresting officer's visual estimate of the speed of the petitioner's vehicle." Similarly, in Matter of Anthony Grace & Sons v New York State Dept. of Motor Vehs. (266 A.D.2d 284');">266 A.D.2d 284 [2d Dept 1999]), the Court held that "[t]he determination that there was clear and convincing evidence... that the petitioner violated [the VTL] is supported by substantial evidence." Thus, while the appellate standard of review of substantial evidence requires great deference to findings that a hearing officer makes based on the evidence placed before it, it still calls for the reviewing court to ensure that such findings are not made in the absence of evidence that could, again with the proper amount of deference, reasonably be called clear and convincing.

         Here, DMV was required to establish that petitioner violated Vehicle and Traffic Law § 1146(c)(1), which imposes liability on "[a] driver of a motor vehicle who causes serious physical injury as defined in article ten of the penal law to a pedestrian or bicyclist while failing to exercise due care." The referenced definition of "serious physical injury" includes "physical injury... which causes death, " (Penal Law § 10.00[10]), which is presumably the basis for the charge against petitioner since he was not issued a summons until after the pedestrian died in the hospital. Thus, DMV was required to present clear and convincing evidence of both failure to exercise care and that such failure led to the pedestrian's demise. Petitioner claims that DMV failed in both respects. Regarding the accident itself, petitioner posits that the evidence was not clear and convincing that he failed to exercise due care, because it was equally plausible that the pedestrian, considering the lighting, the weather, and the hoodie and umbrella that may have obstructed his view, walked into the side of the bus. We reject this position. Under the substantial evidence standard of review, so long as there was some evidence that the Administrative Law Judge could have reasonably deemed to be clear and convincing proof that petitioner should have seen the pedestrian, we may not disturb the administrative finding. ...

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