Dennstedt v. Appeals Bd. of Admin. Adjudication Bureau

• Decision Date: 10 June 2022
• Docket Number: 347,TP 21-01572
• Citation: 206 A.D.3d 1693,170 N.Y.S.3d 435
• Parties: In the Matter of Craig A. DENNSTEDT, Petitioner, v. The APPEALS BOARD OF ADMINISTRATIVE ADJUDICATION BUREAU, NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES and Mark J.F. Schroeder, as Commissioner of the Department of Motor Vehicles, Respondents.
• Court: New York Supreme Court — Appellate Division

206 A.D.3d 1693

170 N.Y.S.3d 435

In the Matter of Craig A. DENNSTEDT, Petitioner,

v.The APPEALS BOARD OF ADMINISTRATIVE ADJUDICATION BUREAU, NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES and Mark J.F. Schroeder, as Commissioner of the Department of Motor Vehicles, Respondents.

347

TP 21-01572

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: June 10, 2022

FITZSIMMONS, NUNN & PLUKAS, LLP, ROCHESTER (JOSEPH PLUKAS OF COUNSEL), FOR PETITIONER.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (ALEXANDRIA TWINEM OF COUNSEL), FOR RESPONDENTS.

PRESENT: LINDLEY, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum: In this CPLR article 78 proceeding, transferred to this Court pursuant to CPLR 7804 (g), petitioner seeks to annul the determination revoking his driver's license based on his refusal to submit to a chemical test following his arrest for driving while intoxicated. We confirm the determination. Contrary to petitioner's contention, the determination is supported by substantial evidence (see generally 300 Gramatan Ave. Assoc. v. State Div. of Human Rights , 45 N.Y.2d 176, 180-181, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ). The arresting officer's testimony at the hearing established that he issued the standardized warning when he informed petitioner that his refusal to submit to chemical testing would result in the immediate suspension and subsequent revocation of his license (see Vehicle and Traffic Law § 1194 [2] [c] [3] ; see generally People v. Smith , 18 N.Y.3d 544, 548-549, 942 N.Y.S.2d 426, 965 N.E.2d 928 [2012] ). While the officer also testified at the hearing that he responded to a question posed by petitioner by stating that he was not confiscating petitioner's license at that exact moment and that petitioner would have a court date at some point, we conclude that such testimony did not conflict with the officer's clear and unequivocal warning regarding the effect of petitioner's refusal to submit to testing (cf. Matter of Gargano v. New York State Dept. of Motor Vehs. , 118 A.D.2d 859, 860, 500 N.Y.S.2d 346 [2d Dept. 1986], lv denied 68 N.Y.2d 606, 506 N.Y.S.2d 1030, 498 N.E.2d 150 [1986] ; see generally People v. Cousar , 226 A.D.2d 740, 741, 641 N.Y.S.2d 695 [2d Dept. 1996], lv denied 88 N.Y.2d 983, 649 N.Y.S.2d 389, 672 N.E.2d 615 [1996] ; Kowanes v. State of N.Y. Dept. of Motor Vehs. , 54...