Alexander v. Tofany

29 A.D.2d 1015, 289 N.Y.S.2d 438, 1968 N.Y. App. Div. LEXIS 4138

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 1968
• Status: Published

Opinion

Memorandum by the Court. This is an article 78 proceeding to review a determination of the respondent Commissioner which suspended the driver’s license of the petitioner pursuant to section 510 of the Vehicle and Traffic Law. In the early morning hours of January 26,1965 the petitioner failed to negotiate a curve on Route 10 in the Town of Jefferson. The petitioner was familiar with the highway at the point where the accident occurred. He testified that the highway was covered with hard packed snow and then again that it was a wet, slushy snow. He estimated his speed at 40 to 45 miles per hour as he entered the curve. There was no sign limiting speed at this curve. He had applied his brakes "slightly" just prior to the accident. He was charged with driving while intoxicated, but that charge was dismissed with the result that he pleaded guilty to a failure to keep right. The investigating trooper asserted that the petitioner had stated “ I must have fallen asleep ” and that he “ smelled of alcoholic beverage ”. The trooper drove at 30 to 35 miles per hour that night because of the road conditions. The record contains sufficient evidence to support the finding of the Referee that the petitioner was proceeding at an unsafe speed for the conditions of the highway. (Vehicle and Traffic Law, § 1180, subds. [a], [c].) The duration of the suspension (45 days) appears not to be excessive in view of the record before the Referee. Determination confirmed, without costs, and petition dismissed. Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.