Matter of Nelke v Department of Motor Vehicles of the State of New York

Matter of Nelke v Department of Motor Vehs. of the State of N.Y. 2010 NY Slip Op 08871 [79 AD3d 433] December 2, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

In the Matter of Richard A. Nelke, Jr., Petitioner,
v
Department of Motor Vehicles of the State of New York, Respondent.

—[*1] Melli, Guerin, Wall & Messineo P.C., New York (Kevin A. Addor of counsel), for petitioner.

Andrew M. Cuomo, Attorney General, New York (Robert C. Weisz of counsel), for respondent.

Determination after hearing by respondent's appeals board, dated May 8, 2009, which affirmed petitioner's traffic conviction, unanimously confirmed, the petition denied, and this proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Jane S. Solomon, J.], entered November 10, 2009), dismissed, without costs.

Petitioner was charged with disobeying a red light, in violation of Vehicle and Traffic Law § 1111 (d) (1). The police officer testified that while stationed at an intersection, he observed petitioner's vehicle drive through a red light, and then followed it without losing sight, issuing petitioner the ticket two blocks away. Petitioner claimed he was at a different intersection and that the officer had mistaken his car for another vehicle.

This Court's review of an administrative agency's determination after a hearing is limited to whether the determination was supported by substantial evidence, and in doing so, deference must be given to the fact-finding and credibility determinations of the agency (Matter of DeOliveira v New York State Dept. of Motor Vehs., 271 AD2d 607 [2000]). While petitioner's evidence conflicted with the officer's testimony, we must defer to respondent's decision to credit the officer's account. Concur—Sweeny, J.P., Catterson, Moskowitz, Renwick and Richter, JJ.