Gaboton v New York State Dept. of Motor Vehicles
2012 NY Slip Op 30997(U)
April 4, 2012
Supreme Court, Nassau County
Docket Number: 16822/11
Judge: Karen V. Murphy
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Short Form Order
SUPREME COURT - STATE OF NEW YORK
TRIAL TERM. PART 11 NASSAU COUNTY
Justice of the Supreme Court
JERRY D. GABOTON,
Index No. 16822/11
Motion Submitted: 2/7/12
Motion Sequence: 001
-againstNEW YORK STATE DEPARTMENT OF MOTOR
The following papers read on this motion:
Notice of Motion/Order to Show Cause........................
Answering Papers..... ...
Briefs: Plaintiff slPetitioner '
Defendant' s/Respondent' s............. ....... ..............
Petitioner moves this court for an Order annullng the determination of the New York
State Department of Motor Vehicles (" DMV" ) directing that petitioner s commercial driver
license be revoked for one year.
Respondent DMV opposes the requested relief, and requests that the petition be
Petitioner claims that " the actions of the Deparment of Motor Vehicles and their
employees were arbitrary, capricious and an abuse of discretion.
In an Article 78 proceeding, only certain questions may be raised as provided in CPLR
9 7803. One of those questions , such as the one presently before this Court , is whether a
determination was made in violation of lawful procedure , was affected by an error of law or
was arbitrary and capricious or an abuse of discretion , including abuse of discretion as to the
measure or mode of penalty or discipline imposed.
The DMV took action against petitioner commencing in April 2011 as the result of
petitioner being identified as an individual with multiple identities. As explained in the
DMV' s opposition papers , the " Facial Recognition Program " is a technology that culls out
multiple records ofthe same person , based upon photographs retained by the DMV , who use
different identities to obtain multiple DMV documents such as licenses and motor vehicle
It is undisputed that Petitioner met with DMV investigators on May 3 2011 regarding
the allegation that he obtained a commercial driver s license in the name of Jimmie Gaboton
in 1996. At the conclusion of the interview , petitioner signed a form entitled " Waiver of
Administrative Hearing, " admitting that he had made a false statement in connection with
the 1996 license. As a result of the interview and execution ofthe waiver form , petitioner
license was revoked for one year , but the revocation was stayed pending appeal. Petitioner
appealed the revocation of his license to the DMV' s Administrative Appeals Board. On
August 30 , 2011 , the Board affirmed the one-year revocation of petitioner s license , an
notified petitioner of its decision by letter dated September 28 , 2011. The revocation became
effective on November 5 2011. Petitioner brought this application on or about January 4
A signed copy of the waiver form is included with the DMV' s Verified Answer
which indicates that Gaboton admitted making a false statement in connection with a license
application , in violation of Vehicle and Traffic Law 9 392.
Vehicle and Traffic Law 9 392 provides , in pertinent part , that the making of any false
statement in connection with an application for any document issued by the Commissioner
of Motor Vehicles shall be guilty of a misdemeanor.
In his sworn petition dated November 17 2011 , Gaboton states that he " was guilty of
nothing, " and that he " never made any false statements on any license application so there
would be nothing to which I should plead guilty.
The DMV' s Verified Answer and Objections in Point of Law sets forth the details of
the investigation conducted relative to Gaboton , including the affidavit of the investigator
Judi Doughert, who states that Gaboton admitted to her that he obtained a commercial
driver s license under a false name in 1996. When confronted with his picture from the 1996
license , Gaboton admitted to the investigator that it was a picture of himself, and that he had
applied for and received a New York license under the false name of Jimmie Gaboton
because he did not have legal immigration status in the United States at that time. Gaboton
then signed the waiver form and admitted to violating the Vehicle and Traffic Law , and
accepted a one- year revocation of his license. The form advises that the signatory has a right
to attend a hearing, to show the form to an attorney before making a decision , and that he or
she may appear at a hearing with an attorney.
In reply to the DMV' s Verified Answer , and in direct contrast to his earlier sworn
petition , Gaboton admits that he applied for a driver s license in 1996 , under a false name
because he was not legally in the United States at that time. ! Gaboton further admits that he
did not disclose this prior violation on his 200 I application for his presently revoked license.
Gaboton claims , however, that he was not told by the DMV investigators that he was facing
a one-year revocation of his license. He does admit having signed the waiver form , although
under alleged duress. Gaboton then requests that " this Court make the punishment fit the
crime " requesting that the revocation of his license be reduced to ninety (90) days so that he
can continue to earn a living for his family. According to Gaboton , he is " being singled out
for selective harsh treatment" because of his prior false license application. Gaboton further
claims that other individuals similarly situated , who attend the DMV hearing with an
attorney, receive a 90- day revocation for the same offense. Gaboton has not provided any
proof of the foregoing, nor does he claim that the one-year revocation is unlawful , or in
contravention of the Vehicle and Traffic Law?
The question is whether the DMV' s determination to revoke Gaboton s driver
Pell v. Board of Education of Union Free School District
34 N. Y.2d 222 313
No. 1 of Towns of Scarsdale and Mamaroneck,
see also Matter of Terrace Ct., LLC v. New York
2d 321 , 356 N.
State Division of Housing and Community Renewal 2012 N. Y. Slip Op. 1100 2012 N.
LEXIS 218 (2012)).
license has a rational basis (see
S.2d 833 (1974);
It is the determination of this Court that Gaboton s admission to DMV investigators
that he submitted a false license application to the Commissioner in 1996 constitutes a
rational basis for the DMV' s revocation of his license , and serves to establish that the DMV' s
revocation of his license was not arbitrary and capricious.
Gaboton acknowledges that his false license was suspended in 2004 because it was
based on an incorrect name and social security number.
Counsel' s affrmation makes an obscure reference to " case # 15l1V2522 , Dezhan Nan
decided on 1- 19- 12" in an apparent effort to demonstrate that similarly situated individuals
receive a lesser penalty.
The fact that Gaboton admits to this Court through his reply papers that he did, indeed
submit a false license application to the DMV in 1996 only serves to confirm the rational
basis for the DMV' s decision to revoke his license.
As to the length of the revocation imposed by the DMV , the Court must determine
whether there was an abuse of discretion as to the measure or mode of penalty or discipline
imposed. " (T)he sanction must be upheld unless it shocks the judicial conscience and
therefore , constitutes an abuse of discretion as a matter oflaw (Featherstone v. Franco , 95
2d 550 , 554 , 742 N. 2d 607 , 720 N. S.2d 93 (2000)). " This calculus involves
consideration of whether the impact of the penalty on the individual is so severe that it is
disproportionate to the misconduct , or to the harm to the agency or the public in general"
2d 680 (2001)).
(Kelly v. Safir 96 N. 2d 32 , 38 , 747 N. E.2d 1280 , 724 N.
The " shock- the-conscience
standard applies to this Court' s review of
(Zuntag v. City of New York 18 Misc.3 d
210 , 853 N. S.2d (Sup. Ct. Richmond County, 2007)), such that this Court " lacks any
discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed by
administrative punishment imposed in this case
In this case
, the Court does not
find that the one- year revocation shocks the
conscience , given the fact that Gaboton admittedly submitted a false license application to
the DMV at a time in his life when he was also ilegally in the United States. Petitioner
Gaboton proceeded according to his own set of rules in order to obtain something to which
he was apparently not entitled , and without regard to the duly enacted laws of this State.
Furthermore , Gaboton s request , made in his reply, that the revocation be reduced
because he needs to " earn a living to support (his) family, " would require this Court to
engage in an interests of justice analysis , which is not permissible in this context.
Accordingly, the petition is denied , and the proceeding is dismissed on the merits.
The foregoing constitutes the Order of this Court.
Dated: April 4 , 2012
. Mineola , N.
Cl!RK' 1 OfFICE