In the Matter of John J. Bainton, Appellant,
New York Department of Motor Vehicles, Respondent.
Calendar Date: November 18, 2019
J. Bainton, Norwalk, Connecticut, appellant pro se.
Letitia James, Attorney General, Albany (Jonathan D. Hitsous
of counsel), for respondent.
Before: Garry, P.J., Lynch, Mulvey, Aarons and Colangelo, JJ.
from a judgment of the Supreme Court (Nichols, J.), entered
March 1, 2019 in Columbia County, which, in a proceeding
pursuant to CPLR article 78, dismissed the petition.
a Connecticut resident, had his privilege to drive in New
York revoked in 2012 after repeated alcohol-related driving
violations in the state. In February 2018, after his request
for a New York driver's license was denied by
respondent's Driver Improvement Bureau (hereinafter the
Bureau), petitioner submitted a "Request for Relicensing
Reconsideration After Denial" to the Bureau, claiming
"unusual, extenuating and compelling circumstances"
(15 NYCRR 136.5 [d]; see Matter of Curry v Commissioner
of N.Y. State Dept. of Motor Vehs., 172 A.D.3d 1588,
1589 ). By written notice dated March 15, 2018, the
Bureau denied the request. The notice further advised that
any appeal to respondent's Appeal Board (hereinafter the
Board) had to be filed within 60 days, i.e., by May 14, 2018.
Thereafter, petitioner sought to appeal this denial utilizing
an "Administrative Appeal Form (AA-33A)," which
petitioner signed and dated April 16, 2018. This form
specified that the appeal should be sent to "DMV Appeals
Board, P.O. Box 2935, Albany, New York 12220-0839." The
transmittal envelope, which included a private postage meter
date stamp of April 16, was addressed to to the "Appeals
Processing Unit." The letter was returned to petitioner
with a "Return to Sender Unable to Forward"
postmark sticker dated May 17, 2018, and a handwritten
notation, "Return to Sender. No one by that name at this
address." By letter dated May 31, 2018, addressed to the
Board, petitioner resubmitted the April 16, 2018 appeal
packet advising that it had "inexplicably" been
returned to him the day before. The Board received this
letter on June 4, 2018 and, the next day, rejected the appeal
as untimely. Petitioner commenced this CPLR article 78
proceeding seeking to restore his driving privileges. Finding
that petitioner failed to exhaust his administrative
remedies, Supreme Court dismissed the petition. Petitioner
affirm. Pursuant to Vehicle and Traffic Law § 263, a
party challenging a determination by the Bureau must first
exhaust all administrative remedies before commencing a
proceeding pursuant to CPLR article 78 (see Matter of
Giambra v Commissioner of Motor Vehs. of State of N.Y.,
46 N.Y.2d 743, 745 ). Petitioner was statutorily
required to file his appeal within 60 days of the
Bureau's written determination (see Vehicle and
Traffic Law § 261 ; 15 NYCRR 155.2 [b]).
Respondent's regulations specify that "[a]ll papers
actually received at the office of the Board will be treated
as timely if the mailing bears a legible postmark evidencing
receipt by the post office within the required time. All mail
received by the Board will be date-stamped and, in the
absence of legible postmark or other U.S. postal record, will
be treated according to the actual date of receipt
demonstrated by the records of the Board" (15 NYCRR
155.4 [c]). For proof of mailing, respondent reasonably looks
to the official U.S. postmark, and we have recognized that
"a postage meter stamp is not the equivalent of a
postmark date" (see Matter of Gallo v Turco,
131 A.D.3d 785, 786-787 ). Given this standard, we
agree with Supreme Court that the Board properly denied
petitioner's appeal as untimely. The only valid postmark
date on the April 2018 transmittal envelope is the May 17,
2018 "return to sender" postmark, which fell
outside the time period to file. Nor does the handwriting on
the envelope establish that the Board timely received the
envelope, as respondent's regulations require all mail to
be date-stamped upon receipt - not to be returned to sender.
We also take note that the post office box number on the
envelope is difficult to read, and reasonably would be
interpreted as "2735" instead of the required
"2935." Since petitioner failed to exhaust his
administrative remedies by filing a timely administrative
appeal, the petition was properly dismissed.
P.J., Mulvey, Aarons and ...