Merced v. Fisher

• Decision Date: 15 January 1976
• Citation: 38 N.Y.2d 557,345 N.E.2d 288,381 N.Y.S.2d 817
• Parties: , 345 N.E.2d 288 In the Matter of Francisco MERCED, Appellant, v. Arnold R. FISHER, as Commissioner of Motor Vehicles, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 817

381 N.Y.S.2d 817

38 N.Y.2d 557, 345 N.E.2d 288

In the Matter of Francisco MERCED, Appellant, v. Arnold R. FISHER, as Commissioner of Motor Vehicles, Respondent.

Court of Appeals of New York.

Jan. 15, 1976.

Harry L. Witte, Middletown, for appellant.

Louis J. Lefkowitz, Atty. Gen., New York City (Eugene O'Brien, Asst. Atty. Gen., of counsel), for respondent.

PER CURIAM.

Petitioner seeks vacatur of an order of this court which, upon its own motion, transferred his appeal to the Appellate Division, Second Department, pursuant to article VI (§ 5, subd. b) of the State Constitution (37 N.Y.2d 942, 380 N.Y.S.2d 649, 343 N.E.2d 288).

By an article 78 (CPLR) proceeding, petitioner sought to challenge the constitutionality of section 332 of the Vehicle and Traffic Law. Section 332 authorizes suspension, without a hearing, of a judgment-debtor's operator's license and vehicle registration upon certification of his failure to satisfy a judgment for damages sustained in connection with his operation of a motor vehicle. Supreme Court, Orange County, dismissed the proceeding on the merits. Petitioner appealed directly to this court, purportedly as of right. This court, upon its own motion, transferred the appeal to the Appellate Division, Second Department, on the ground that 'A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved' (see N.Y.Const., art. VI, § 5, subd. b).

The issue is whether a transfer order is proper when, on a direct appeal, in addition to a constitutional question, a nonconstitutional procedural question is presented.

The motion to vacate the transfer order should be denied. On a direct appeal, the only question which may be raised is the constitutionality of a statute (N.Y.Const. art. VI, § 3, subd. b, par. (2); CPLR 5601, subd. (b), par. 2). In the instant case, in addition to the constitutionality of the statute, there is a procedural question whether an article 78 proceeding is proper to challenge the constitutionality of the statute. Thus, a direct appeal to this court does not lie, and, hence, the transfer order was proper.

An article 78 proceeding does not lie to review a legislative enactment (see, e.g., Matter of Kovarsky v. Housing & Development Admin., City of N.Y., 31 N.Y.2d 184, 191--192, 335 N.Y.S.2d 383, 387--388, 286 N.E.2d 882, 885--886, and cases cited). The proper method to test the constitutionality of a legislative enactment is by an action for a declaratory judgment (see, e.g., Dun & Bradstreet v. City of New York, 276 N.Y. 198, 206, 11 N.E.2d 728, 731; 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3001.06g).

True, when a case is properly before the court, that is, under unrestricted appealability, such as by appeal from the Appellate Division under CPLR 5602 (subd. (a), par. 2), it may convert an article 78 proceeding into a declaratory judgment action (see,...