Violi v. New York State Department of Motor Vehicles

• Decision Date: 16 February 2007
• Docket Number: 377/07.
• Citation: 2007 NY Slip Op 27151,15 Misc.3d 1044,838 N.Y.S.2d 354
• Parties: LEONARD VIOLI, Petitioner, v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, Respondent.
• Court: New York Supreme Court

15 Misc.3d 1044

838 N.Y.S.2d 354

2007 NY Slip Op 27151

LEONARD VIOLI, Petitioner, v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, Respondent.

377/07.

Supreme Court, Westchester County.

February 16, 2007.

Andrew M. Cuomo, Attorney General, White Plains (Vincent M. Cascio of counsel), for respondent.

McMillan, Constabile, Maker & Perone, LLP, Larchmont (John M. Perone of counsel), for petitioner.

OPINION OF THE COURT

JONATHAN LIPPMAN, J.

The following papers were read on the motion of respondent New York State Department of Motor Vehicles (DMV) to dismiss this CPLR article 78 proceeding pursuant to CPLR 7804 (f) and CPLR 3211 for failure to state a cause of action, and, upon the application of petitioner, Leonard Violi for an order from this court preliminarily enjoining respondent or respondent's agents from taking any action to suspend or revoke petitioner's driver's license pending the court's determination of this article 78 proceeding:

PAPERS

Order to show cause, verified petition

Affirmation of John M. Perone, Esq., exhibits 1-2

Notice of motion to dismiss petition

Affirmation of Vincent M. Cascio, Assistant Attorney General (AAG), exhibit 1

Affirmation of John M. Perone, Esq., in opposition to motion to dismiss

Reply affirmation of Vincent M. Cascio, Assistant Attorney General

Affirmation of Deborah Dugan, Esq., exhibits A-B

Transcript of hearing held on December 13, 2006 attached to surreply letter from John M. Perone, Esq., and attachment¹

Upon the foregoing papers, respondent's motion to dismiss the petition and petitioner's application for a preliminary injunction pending the resolution of this article 78 proceeding are resolved as follows:

Factual and Procedural Background

On December 5, 2006, petitioner was arraigned in the Village of Larchmont Justice Court on charges of driving while intoxicated based on, inter alia, petitioner's alleged refusal to submit to a chemical test (e.g., breathalyzer) after a traffic stop on December 1, 2006. During petitioner's arraignment, pursuant to Vehicle and Traffic Law § 1194 (2) (b) (3), the Village of Larchmont Justice Court issued a notice of temporary suspension and notice of hearing (the suspension notice),² which temporarily suspended petitioner's driver's license and scheduled December 13, 2006 as the date for a revocation hearing based on the verified report of petitioner's refusal to submit to a chemical test (the refusal report) drafted by the police officer before whom petitioner's refusal was made. Pursuant to the suspension notice's terms, petitioner's driver's license was suspended for a period of 15 days or until the chemical test refusal hearing date, whichever occurred first.

At the chemical test refusal hearing on December 13, 2006, petitioner's counsel was provided a copy of the refusal report, and, upon reviewing same, moved to dismiss the proceeding based on the facial deficiencies found therein. Specifically, the refusal report was left blank in the areas on the form requiring the police officer to set forth the facts establishing the reasonable grounds for making the arrest both with regard to the traffic infraction supporting the stop and the indicia of petitioner's intoxication. Petitioner's counsel argued that the report was defective and the administrative law judge (the ALJ) was without jurisdiction to hear the proceeding because Vehicle and Traffic Law § 1194 (2) (b) (2) requires that the refusal report "set forth reasonable grounds to believe such arrested person . . . had been driving in violation of any subdivision of [Vehicle and Traffic Law § 1192 or § 1192-a]." The ALJ denied the motion to dismiss on the grounds that it was premature and proceeded to hear only the testimony of the arresting officer. Prior to adjourning the chemical test refusal hearing due to the time constraints of the ALJ, the ALJ suspended petitioner's driver's license pending the conclusion of the hearing. However, no future hearing date was calendared.

On or about January 16, 2007, petitioner filed an administrative appeal of the ALJ's suspension order with DMV's Appeals Board. In his appeal, petitioner argued that the ALJ's decision to deny his motion to dismiss as premature and the ALJ's suspension order were in error³ (see affirmation of Deborah Dugan, Esq. [Dugan aff], reply affirmation of Vincent M. Cascio, AAG [Cascio reply aff], exhibit A). On January 23, 2007, the chair of DMV's Appeals Board granted a stay of the suspension of petitioner's driver's license pending the conclusion of the appeal, which is apparently still pending (Dugan aff ¶¶ 4-5). Therefore, according to respondent, petitioner currently holds "a full and valid Class D driver license" (Cascio reply aff ¶ 3).

On January 8, 2007, petitioner initiated, by order to show cause, the instant article 78 proceeding seeking an order from this court enjoining respondent and its agents from proceeding with the chemical test refusal hearing, or taking any action to suspend or revoke petitioner's driver's license and preliminarily restoring petitioner's driver's license pending the final determination of this proceeding. In his petition, petitioner argues that given the Vehicle and Traffic Law's clear provisions, respondent's continuation of the revocation proceeding is "contrary to law and in contravention of the authority and jurisdiction granted to Respondent and its agents in accordance with that statute" (petition ¶ 15).

Respondent moves to dismiss the petition based on its failure to state a claim upon which relief may be granted. Respondent contends that, although the order to show cause sets forth the basis for the proceeding as CPLR 7803 (1) (mandamus to compel) and CPLR 7803 (2) (prohibition), the petition itself fails to cite to the provisions of CPLR article 78 under which this proceeding has been brought. Furthermore, even if the petition alleged claims based on CPLR 7803 (1) and (2), it is respondent's position that the petition must be dismissed because the claims are not supportable. Respondent contends that the claim for mandamus relief fails because it is "a judicial command to an officer or body to perform a specified ministerial act that is required by law to be performed ... [and] [o]nly ministerial acts that involve no exercise of judgment or discretion are subject to mandamus to compel" (affirmation of Vincent M Cascio, AAG [Cascio aff] ¶ 8). According to respondent, "mandamus does not lie since the hearing officer, `acting on behalf of the commissioner,' has discretion to decide the statutory issues under VTL § 1194 and also the discretion to impose a temporary license suspension pending the final outcome of the hearing" (Cascio aff ¶ 9).

Respondent likewise asserts that a writ of prohibition is unavailable because petitioner has failed to establish a clear right to relief because the blank entries on the refusal report do not "implicate the legality of the entire proceeding itself" and the ALJ has the subject matter jurisdiction and authority to preside over the chemical test refusal hearing (id. ¶ 14). Respondent further argues that even if petitioner had established a clear right to relief, prohibition does not lie since petitioner has an alternative remedy at law in the nature of a certiorari to review a negative determination by the ALJ pursuant to CPLR 7803 (3) or (4) (id. ¶ 17). Finally, respondent contends that "prohibition is never available merely to correct or prevent trial errors of substantive law or procedure, however, grievous" (id. ¶ 18).

In opposition, petitioner argues that the petition properly states claims based on prohibition and mandamus because "[r]espondent has exceeded the jurisdiction and authority conferred upon it under ... [Vehicle and Traffic Law] § 1194 ... and has refused to take action or refrain from acting in the manner required by that statute" (affirmation in opposition of John M. Perone, Esq. [Perone opp aff] ¶ 3).

In respondent's reply, respondent argues, inter alia, that the relief sought by petitioner has already been granted by DMV's Appeals Board and, therefore, the proceeding is moot. Respondent further argues that the proceeding is premature because petitioner's appeal and chemical test refusal hearing are ongoing and petitioner should exhaust his administrative remedies prior to instituting this proceeding.

Legal Discussion

Petitioner Has Stated a Viable Claim for Prohibition Based on His Allegations That Respondent is Acting in Excess of the Jurisdiction Conferred on it by Statute

On a motion to dismiss a petition for failure to state a claim under CPLR 3211 (a) (7) and 7804 (f), the allegations of the petition, and all reasonable inferences that may be drawn from those allegations, must be accepted as true and the petition must be liberally construed in favor of the petitioner (see Matter of 10 E. Realty, LLC v Incorporated Vil. of Val. Stream, 17 AD3d 472 [2005]; Matter of Zaidins v Hashmall, 288 AD2d 316 [2001]; Anguita v Koch, 179 AD2d 454 [1992]). The central question on a motion to dismiss is whether the petition's allegations state a legally cognizable claim (see Held v Kaufman, 91 NY2d 425 [1998]). The court's role is simply to determine whether the facts, as alleged, fit into any valid legal theory (see Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409 [2001]).

It is well established that the extraordinary remedy of prohibition "is available only where there is a clear legal right, and only when an officer acts without jurisdiction or in excess of powers in a proceeding over which there is jurisdiction `in such a manner as to implicate the legality of the entire proceeding'" (Matter of Doe v Axelrod, 71 NY2d 484, 490 [1988], quoting Matter of Rush v Mordue, 68 NY2d 348, 353 [1986]; see also Matter of Pirro v Angiolillo, 89 NY2d 351 [1996]; Matter of State of New York v King, 36 NY2d 59, 62 [1975]). Prohibition does not lie as a matter of right but only in the sound discretion of ...