MATTER OF TRIPLE a AUTO DRIVING SCH., INC. v. Foschio

65 N.Y.2d 755 (1985)

In the Matter of Triple a Auto Driving School, Inc., Appellant, v. Leslie G. Foschio, as Commissioner of the Department of Motor Vehicles of the State of New York, Respondent.

Court of Appeals of the State of New York.

Decided June 11, 1985.

Frederick Chung, Jr., for appellant.

Robert Abrams, Attorney-General (Eugene E. Zegarowicz of counsel), for respondent.

Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE and TITONE, concur; Judge ALEXANDER taking no part.

MEMORANDUM.

The judgment of the Appellate Division should be affirmed, with costs.

*756The proceeding raises issues concerning whether there was substantial evidence to support the Commissioner's determination that on three separate occasions while the petitioner's license to operate a driving school business was suspended it operated the business in violation of Vehicle and Traffic Law § 394 (2), and whether the penalty imposed was excessive.

The only question which requires discussion is whether petitioner was deprived of a fair hearing by the introduction of an affidavit of one of petitioner's students attesting that she had received and paid for lessons on two dates during the suspension. The affidavit was presented in lieu of oral testimony because the student was ill on the day of the hearing and its introduction was supported by the testimony of the inspector who interviewed the student and by whom the sworn statement was taken.

Annexed to and admitted with the affidavit were photocopies of the student's checks given on the day of the lessons in payment of petitioner's fee, each of which bore petitioner's indorsement. In light of that fact and of petitioner's failure to present any evidence on its own behalf or in explanation of its indorsement on the checks, the evidence met the substantial evidence test that it be of such quality as to persuade a fair and detached fact finder that petitioner had violated the suspension order on the dates in question (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 N.Y.2d 176, 181).

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment affirmed, with costs, in a memorandum.