R & D Equipment Leasing Co. Inc. v. Adduci

• Decision Date: 19 October 1995
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of R & D EQUIPMENT LEASING COMPANY INC., Petitioner, v. Patricia B. ADDUCI, as Commissioner of the New York State Department of Motor Vehicles, Respondent.

Page 332

632 N.Y.S.2d 332

220 A.D.2d 900

In the Matter of R & D EQUIPMENT LEASING COMPANY INC., Petitioner, v. Patricia B. ADDUCI, as Commissioner of the New York State Department of Motor Vehicles, Respondent.

Supreme Court, Appellate Division Third Department.

Oct. 19, 1995.

David B. Grossman P.C. (David B. Grossman, of counsel), Mineola, for petitioner.

Dennis C. Vacco, Attorney-General (Francis V. Dow, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and CREW, WHITE, CASEY and YESAWICH, JJ.

YESAWICH, Justice.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating Vehicle and Traffic Law § 385(9).

On July 10, 1991, petitioner, the registered owner of a three-axle dump truck, was charged with two violations of the Vehicle and Traffic Law. State Police inspection of the truck revealed that the weight being carried exceeded the maximum allowed by an overweight permit issued to petitioner by the City of New York's Department of Transportation. After a hearing, one of the charges was sustained and petitioner was fined accordingly. The conviction and penalty were upheld by the Appeals Board of the Department of Motor Vehicles, and this proceeding ensued.

There is no merit to defendant's contention that issuance of a traffic summons to the truck's operator did not confer personal jurisdiction over the corporation. Having appeared by its authorized attorney and contested the matter on the merits, without registering any objection to respondent's exercise of jurisdiction, petitioner waived its right to raise that issue at this juncture (see, Skyline Agency v. Ambrose Coppotelli Inc., 117 A.D.2d 135, 140, 502 N.Y.S.2d 479; cf., Matter of United States Power Squadrons v. State Human Rights Appeal Bd., 84 A.D.2d 318, 325, 445 N.Y.S.2d 565, affd 59 N.Y.2d 401, 465 N.Y.S.2d 871, 452 N.E.2d 1199).

Equally unpersuasive is petitioner's argument that the inspecting officer lacked authority to stop the truck. The officer's observations--that the truck was fully loaded, that the tires on both sides were bulging excessively, and that the rear of the truck was lower than the front, placing undue strain on the engine--gave him ample "reason to believe" that the truck was carrying an unlawful load, satisfying the statutory prerequisite for stopping the vehicle to weigh it (see, Vehicle and Traffic Law § 393), as well as the constitutional mandate that there be "specific and articulable facts" to justify a vehicle safety stop (see, People v. Ingle, 36 N.Y.2d 413, 420, 369 N.Y.S.2d 67, 330 N.E.2d 39, quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889). The stop being proper, the evidence it generated, namely, that petitioner's truck was being operated with a total weight on the two rear axles of 61,400 pounds, despite the permit limit of 58,000 pounds, was properly considered by the Administrative Law Judge and by respondent.

Meritless also is petitioner's...