Station v. Swarts (In re Tony's Towing Serv., Inc.)

• Decision Date: 07 August 2013
• Citation: 109 A.D.3d 475,2013 N.Y. Slip Op. 05577,970 N.Y.S.2d 274
• Parties: In the Matter of TONY'S TOWING SERVICE, INC., doing business as Salamis Services Station, petitioner, v. David J. SWARTS, etc., respondent.
• Court: New York Supreme Court — Appellate Division

109 A.D.3d 475

970 N.Y.S.2d 274

2013 N.Y. Slip Op. 05577

In the Matter of TONY'S TOWING SERVICE, INC., doing business as Salamis Services Station, petitioner,

v.David J. SWARTS, etc., respondent.

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

Aug. 7, 2013.

Bellavia Gentile & Associates, LLP, Mineola, N.Y. (Carol A. Crossett of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Cecelia C. Chang and Laura R. Johnson of counsel), for respondent.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.

Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the New York State Department of Motor Vehicles, dated January 11, 2011, which, upon a decision of the New York State Department of Motor Vehicle Repair Shop Review Board dated November 8, 2010, denying the petitioner's application to vacate its default in appearing at an administrative hearing and for a new hearing, and affirming the determination of an Administrative Law Judge dated September 5, 2007, made upon the petitioner's failure to appear at the hearing, sustained certain charges against the petitioner and revoked the petitioner's repair shop registration.

ADJUDGED that the determination dated January 11, 2011, is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

On or about December 12, 2006, the New York State Department of Motor Vehicles (hereinafter the DMV) received a complaint against the petitioner, a motor vehicle repair shop. On January 11, 2007, a DMV consumer services representative contacted the petitioner regarding the allegations contained in the complaint, and on February 15, 2007, a DMV investigator interviewed Michael Koudellou, the petitioner's president. The petitioner received notice to appear at a hearing scheduled for July 16, 2007, regarding the allegations contained in a specification of charges. Although a hearing was held on July 16, 2007, the petitioner failed to appear at the hearing.

In a determination dated September 5, 2007, an Administrative Law Judge (hereinafter ALJ) noted that the petitioner failed to appear at the hearing that was held on July 16, 2007. Upon the petitioner's default, and based on the record, the ALJ concluded that, in the absence of any explanation by the petitioner for its conduct, several of the charges should be sustained. The ALJ thus sustained charges one, two, three, six, seven, and eight, and revoked the petitioner's repair shop registration.

By notice dated September 21, 2007, the DMV notified the petitioner that its repair shop registration was revoked. The petitioner subsequently appealed the ALJ's determination to the DMV Repair Shop Review Board (hereinafter Review Board), and requested that the default be vacated. The revocation of the petitioner's registration was stayed pending the outcome of the administrative appeal. The petitioner argued, inter alia, that it had a reasonable excuse for its failure to appear at the hearing, as well as a meritorious defense to the charges. In a decision dated November 8, 2010, the Review Board denied the petitioner's request to vacate the default, and affirmed the ALJ's determination. By notice dated January 11, 2011, the Commissioner of the DMV notified the petitioner that the stay of the revocation of its registration had been lifted, and that the revocation was in full force and effect.

The petitioner thereafter commenced this proceeding pursuant to CPLR article 78 to review the DMV's determination to revoke its registration.

“[A] petitioner is not aggrieved by an administrative determination made on his [or her] default and may not seek to review such a determination” ( Interboro Mgt. Co. v. State Div. of Human Rights, 139 A.D.2d 697, 698, 527 N.Y.S.2d 453;seeCPLR 5015, 5511; Matter of Matsos Contr. Corp. v. New York State Dept. of Labor, 80 A.D.3d 924, 914 N.Y.S.2d 445;Matter of Brooks v. New York City Hous. Auth., 58 A.D.3d 836, 873 N.Y.S.2d 104;Matter of Yarbough v. Franco, 264 A.D.2d 740, 694 N.Y.S.2d 757,affd.95 N.Y.2d 342, 347, 717 N.Y.S.2d 79, 740 N.E.2d 224;Matter of Delgado v. New York City Hous. Auth., 2012 N.Y. Slip Op. 32909[U], 2012 WL 6221096 ). Although the petitioner is not entitled to CPLR article 78 review of the Review Board's determination to sustain the charges and revoke its registration, which was made upon its default, the Review Board's determination to deny its application to vacate the default may be reviewed ( see Interboro Mgt. Co. v. State Div. of Human Rights, 139 A.D.2d 697, 527 N.Y.S.2d 453;seeCPLR 5015, 5511; Matter of Matsos Contr. Corp. v. New York State Dept. of Labor, 80 A.D.3d 924, 914 N.Y.S.2d 445;Matter of Yarbough v. Franco, 264 A.D.2d 740, 694 N.Y.S.2d 757;Matter of Delgado v. New York City Hous. Auth., 2012 N.Y. Slip Op. 32909[U], 2012 WL 6221096 ).

Although the DMV conducted a hearing directed by law at which evidence was taken, the determination sustaining the charges and revoking the petitioner's registration, as noted above, is not reviewable, and no substantial evidence issue was raised in connection with the petitioner's challenge to the denial of its application to vacate its default. Accordingly, the Supreme Court should not have transferred the proceeding to this Court, but should have disposed of the proceeding by addressing the petitioner's challenge to the Review Board's denial of its application to vacate the default ( seeCPLR 7804[g] ). However, since the matter is now before this Court, we will decide the case on the merits in the interest of judicial economy ( see Matter of Halperin v. City of New Rochelle, 24 A.D.3d 768, 772, 809 N.Y.S.2d 98;Matter of Sunrise Manor Ctr....