O'Donnell v. Lomenzo

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before DEL VECCHIO
• Citation: O'Donnell v. Lomenzo, 302 N.Y.S.2d 273, 32 A.D.2d 885 (N.Y. App. Div. 1969)
• Decision Date: 27 June 1969
• Parties: Application of Harry O'DONNELL, Petitioner, v. John P. LOMENZO, Secretary of State, Respondent.

Page 273

302 N.Y.S.2d 273

32 A.D.2d 885

Application of Harry O'DONNELL, Petitioner, v. John P. LOMENZO, Secretary of State, Respondent.

Supreme Court, Appellate Division, Fourth Department.

June 27, 1969.

Carmelo A. Parlato, Buffalo, for petitioner.

Louis J. Lefkowitz, Atty. Gen., Joseph J. Ricotta, Dunkirk, for respondent.

Before DEL VECCHIO, J.P., and WITMER, GABRIELLI, BASTOW and HENRY, JJ.

MEMORANDUM:

There was substantial evidence to support respondent's determination of 'untrustworthiness' on the part of petitioner under Real Property Law § 441--c, subd. 1, and Executive Law § 296, subds. 5 and 6 (Matter of Diona v. Lomenzo, 26 A.D.2d 473, 275 N.Y.S.2d 663; cf. Matter of Chiaino v. Lomenzo, 26 A.D.2d 469, 275 N.Y.S.2d 658; Birch v. Lomenzo, 31 A.D.2d 835, 298 N.Y.S.2d 281). In the light of the petitioner's hitherto unblemished record, however, and the evidence of his cooperative attitude with respect to complainant, we believe the punishment was excessive and that suspension for three months is more appropriate in this case (see Matter of Kamper v. Department of State, 26 A.D.2d 697, 272 N.Y.S.2d 808, affd. 22 N.Y.2d 690, 291 N.Y.S.2d 804, 238 N.E.2d 914; Black v. Lomenzo, 31 A.D.2d 908, 298 N.Y.S.2d 117; Birch v. Lomenzo, supra, 31 A.D.2d 835, 298 N.Y.S.2d 281).

Determination unanimously modified on the law and facts and in the exercise of discretion by reducing the punishment to suspension of license for three months, commencing from the date of the order to be entered hereon, and as modified confirmed, without costs.