Conroy v. Melton

53 A.D.2d 679, 385 N.Y.S.2d 133, 1976 N.Y. App. Div. LEXIS 13429

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 28, 1976
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review appellant’s cancellation of petitioner’s (1) New York State driver’s license and (2) tractor registration, the appeal is from a judgment of the Supreme Court, Orange County, dated June 23, 1975, which (1) declared null and void appellant’s revocation of the petitioner’s driver’s license, without prejudice to appellant’s right to conduct an administrative hearing on notice to petitioner, and (2) declared that it is unconstitutional for appellant to revoke a driver’s license pursuant to subdivisions 2, 3 and 5 of section 318 of the Vehicle and Traffic Law without first affording the licensee an opportunity for a hearing. Appeal dismissed as moot, without costs or disbursements. The order of revocation was rescinded upon a showing that the vehicle involved in the accident was actually insured. Were we not dismissing this appeal, we would reverse the judgment on the merits and would hold that the subject subdivisions of the statute in question are constitutional. A driver has two opportunities to protect his license. In the first instance, if he is cited for failing to have the required policy of insurance, he can refute the accusation on the return day by producing evidence thereof, as was the case herein. Secondly, if served with notice of revocation, he may, as noted by Cooke, J., in Matter of Horodner v Fisher (38 NY2d 680, 685) "seek a stay and, by way of an article 78 proceeding (CPLR 7803, subd 3), challenge the action taken.” These alternatives appear to furnish safeguards sufficient to protect a driver against an unconstitutional deprivation of due process. Bell v Burson (402 US 535) is inapposite on the facts of this case. Martuscello, Acting P. J., Cohalan, Damiani, Shapiro and Titone, JJ., concur. [82 Misc 2d 750.]