Milcarek v NYS Dept. of Motor Vehicles

Annotate this Case

Download PDF

Milcarek v NYS Dept. of Motor Vehicles 2013 NY Slip Op 32572(U) October 18, 2013 Sup Ct, New York County Docket Number: 100984/13 Judge: Carol E. Huff Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - CA~""1!. PRESENT: NEW YORK COUNTY HUFF Justice INDEX NO. MOTION DATE - v MOTION SEQ. NO. 6) MOTION CAL. NO. The following papers, numbered 1 to _ _ were read on this motion to/for - - - - - - PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits Exhibits ... - Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - (.fJ Cross-Motion: (.fJ Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - - 2 0 <( D Yes No w a: (.!) Upon the foregoing papers, it is ordered that 9 If W2 u- -1 ~~ (.fJ ..J ..J ::> 0 ..., 0 1- tnot1ou fs !ecided 1n acoordalic" LL w wrt tti 0 J: w la: a: a: 0 a.c*'>m},19.ny lng memorandum ~ u.. w a: >- ..J ..J ::> u.. J- u w c.. (.fJ w a: ti) w ti) <( u -z 0 l- o Dated: _ _-"'-'C Q' 1'----1_8_2_01_3·_·_ ~ Check one: /tJ FINAL DISPOSITION Check if appropriate: DO NOT POST decteton [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 32 -------------------------------------------------------------------------x APPLICATION OF BONNIE MILCAREK, Index No. 100984/13 Petitioner, For a Judgment Pursuant to CPLR Article 78 - against NEW YORK STATE DEPARTMENT OF MOTOR lJNf\lED JUOG~;~h~ County C\erk VEHICLES and BARBARA J. FIALA, ment has not been enter ed iased hereon. To AS COMMISSIONER OF THE NEW YO,.-....~,.,, e of entry cannot~ ~z~ representative must DEPARTMENT OF MOTOR VEHICLES, obtain e.ntry, couns~\i: ~~~nt Clerk's Des\\ \RoOffi appear in person a dA.illl.l ,. R~ents. : . __ .;:;....,,.,,_.,,... ,, . .... ~,,.._...,.,,,,'$-"" t,. ,,_ .......,, ..... ,. -------------------------------------------------------------------------x CAROLE. HUFF, J.: In this Article 78 proceeding, petitioner seeks an order annulling the determination of respondent New York Department of Motor Vehicles (DMV) dated February 26, 2013, which affirmed the denial of her application to reinstate her driver's license. Petitioner contends that the determination was arbitrary and capricious, and that the implementation of DMV' s new regulations is unconstitutional on numerous grounds. Petitioner pled guilty to three alcohol-related driving violations between 1994 and 2006. She incurred twenty-two points for driving offenses within a twenty-five year period. Her driver's license was revoked on April 30, 2007, following her October 15, 2006 alcohol-related conviction. Following completion of a "relapse prevention program" and discharge from probation supervision, petitioner submitted an application to reinstate her license in May 2012. At that time all such applications were held in abeyance by the DMV pending promulgation of [* 3] new state regulations setting forth new standards for relicensing. The new regulations, contained in 15 NYCRR § 136 and effective September 25, 2012, provide that if the applicant "has three or four alcohol- or drug-related driving convictions or incidents in any combination within the 25 year look back period and, in addition, has one or more serious driving offenses within the 25 year look back period, then the commissioner shall deny the application." § 136.5(b)(2). A "serious driving offense" includes incurring "20 or more points from any violations." .§ 136.5(a)(2)(iv). The person whose license has been permanently revoked may apply for waiver of the revocation after five years, but only if the provisions of§ 136.5 no longer apply. Petitioner's driving history plainly falls within these provisions mandating the denial of her application. She argues, however, that she pled guilty to her last alcohol-related driving charge only because the provisions of the pre-amendment regulations would have allowed her to be relicensed within a shorter period of time. She contends that the application of the new provisions is wrongful, alleging that they conflict with statutory law; they violate the separation of powers doctrine; they violate the ex post facto and due process clauses; the new regulations themselves are arbitrary and capricious; and the withholding determination of petitioner's original application pending passage of the new regulations was unlawful. None of these contentions has merit. Pursuant to VTL §§ 510(6) the DMV Commissioner has discretion to establish conditions for relicensing. The ex post facto clause of the United States Constitution is not implicated because it applies to criminal acts and punishments, not civil remedies that seek to protect the public, as here. See People v Parilla, 109 AD3d 20 (1st Dept 2013). The Due Process Clause is not implicated because possession of a -2- [* 4] license is a privilege, not a right, and is subject to reasonable regulation. See Papaioannou v Kelly, 14 AD3d 459 (1st Dept 2005). Finally, petitioner's remedy with respect to the holding off of the determination was a proceeding in mandamus to compel the DMV to render a decision, which petitioner did not initiate. See Gianelli v New York State Div. of Hous. & Com. Renewal, 142 Misc2d 285 (Sup Ct NY County 1985). Consequently, the determination to deny the application for relicensing will be upheld unless it is shown that the determination "was affected by an error of law ... or was arbitrary and capricious or an abuse of discretion." CPLR 7803(3). The test is whether the determination is "without sound basis in reason and is generally taken without regard to the facts." Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, 231 (1974). An administrative agency, "acting pursuant to its authority and within the orbit of its expertise, is entitled to deference, and even if different conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency when the agency's determination is supported by the record." Partnership 92 LP & Bld. Mgt. Co. Vv State ofN.Y. Div. of Hous. & Community Renewal, 46 AD3d 425, 429 (1st Dept 2007), aff d 11 NY3d 859 (2008). Petitioner has failed to demonstrate that the determination was affected by these factors. Accordingly, it is ADJUDGED that the petition is denied and the proceeding is dismissed. Dated: OCT '1 B 2013 _ $ This iudgme UNt=fLED 7t BTJd notice has not b JUDGMENT Obtain ent o entry canneen entered b BPPear in ry, COunse1 or ot be served the County C 1418). Person at th 6 hereo ased CAm5i£ HUFF J.S.C. authorized fer/( e Judgme representa. n. To nt Clerk's De t~~ must sl{ (Ruom ·-.-, -~ - :

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.