Hanmer v. Tofany

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: WITMER
• Citation: Hanmer v. Tofany, 312 N.Y.S.2d 295, 34 A.D.2d 383 (N.Y. App. Div. 1970)
• Decision Date: 30 June 1970
• Parties: Application of Earl F. HANMER, Respondent, v. Vincent L. TOFANY, Commissioner of Motor Vehicles, Appellant.

Page 295

312 N.Y.S.2d 295

34 A.D.2d 383

Application of Earl F. HANMER, Respondent, v. Vincent L. TOFANY, Commissioner of Motor Vehicles, Appellant.

Supreme Court, Appellate Division, Fourth Department.

June 30, 1970.

[34 A.D.2d 384] Louis J. Lefkowitz, Atty. Gen., New York, for appellant (James G. DiStefano, Syracuse, of counsel).

Daniel Panels, Syracyse, for respondent.

Before GOLDMAN, P.J., and MARSH, WITMER, MOULE, and HENRY, JJ.

OPINION

WITMER, Justice.

In this Article 78 proceeding the Commissioner of Motor Vehicles appeals from an order annulling and vacating his determination revoking petitioner-respondent's registration and chauffeur's license for failing to have liability insurance coverage and for operating his automobile without such insurance. It appears that prior to his determination the Commissioner had received from petitioner's insurance carrier on September 16, 1966 a notice that the insurance on petitioner's automobile had been terminated.

In his petition in support of this proceeding petitioner alleged that he was insured, that the cancellation of his insurance by his insurer was a mistake, that he did not have knowledge of the cancellation at the time he was operating his automobile and was involved in an accident on December 15, 1966, that he turned his license and registration in to the Commissioner immediately upon being informed 10 days later that his insurance was cancelled, that 30 days thereafter he was advised by the Department of Motor Vehicles that he was eligible for new registration plates and was issued new license plates, registration and chauffeur's license; and that a few months later, on September 6, 1967, his registration and license were revoked for one year. Petitioner asserted that the revocation was illegal because he in fact did have insurance and further that the Commissioner acted improperly in not granting him a hearing. The show cause order granted upon the petition stayed the Commissioner from enforcing his orders of revocation pending court determination of the correctness of his acts.

Special Term took evidence concerning the allegations of the petition (see Hubbell v. Macduff, 2 N.Y.2d 563, 567, 161 N.Y.S.2d 857, 859, 141 N.E.2d 897, 898), and upon concluding that petitioner's insurance had been in force at all times, granted the petition and annulled the Commissioner's determination and orders of revocation and directed the Commissioner to re-issue the registration, number plates and chauffeur's license.

The Legislature has declared it to be the policy of the State of New York that resident owners of all motor vehicles operated on the highways of the State carry minimum liability insurance or comparable security 'to respond in damages for their negligent acts' (Vehicle & Traffic Law, Article 6, § 310); and to implement such policy it has provided that 'no motor vehicle shall be registered in this state unless the application for such registration is accompanied by proof of financial security which shall be evidenced by a certificate of insurance (FS1) or * * *' (Ibid., § 312). To insure continued compliance with such policy it is further provided that an owner's liability insurance policy may not be terminated by his insurer except by specified notice to the owner and the filing of such notice with the Commissioner of Motor Vehicles (Ibid., § 313), the form therefor being FS4; and it is further provided that 'The Commissioner, upon receipt of evidence that proof of financial security for any motor vehicle registered in this state is no longer in effect shall revoke the registration of such vehicle' (Ibid., § 318, subd. 1(a)). Subdivision (b) of section 318, subdivision 1, provides that the Commissioner may not re-register such vehicle for 30 days after the revocation. Subdivision 2(a) of section 318 commands the Commissioner, upon receipt of evidence that a motor vehicle owner has operated his vehicle upon the highways while proof of financial security was not in effect with respect thereto, to revoke the owner's driver's license as well as the registration, and subdivision (b) thereof provides that such registration and license may not be re-issued to him for one year after such revocation.

It is agreed that the Commissioner, having received the notice of termination of petitioner's insurance and notice of petitioner's subsequent accident while driving that vehicle, revoked the vehicle's registration under section 318, subdivision 1 and revoked petitioner's chauffeur's license under section 318, subdivision 2, and that he was required by law to do so. The evidence which the Commissioner received that petitioner's vehicle was uninsured was of the highest character, that is, notice of termination of the insurance mailed directly from the insurance carrier on official form FS4 provided therefor. Upon receipt of such notice the Commissioner was required to revoke petitioner's registration without a hearing (Simpson v. Tofany, 58 Misc.2d 843, 296 N.Y.S.2d 845; Matter of Foster (MVAIC), 55 Misc.2d 784, 787, 286 N.Y.S.2d 775, 779; Matter of Langabeer v. Hults, 52 Misc.2d 730, 276 N.Y.S.2d 430; Matter of Fontaine v. Hults, 41 Misc.2d 312, 314, 245 N.Y.S.2d 146, 148; Matter of Bookbinder v. Hults, 19 Misc.2d 1062, 1065, 192...