Dery v. Kelly

Appellate Division of the Supreme Court of New York

Dery v. Kelly

2 A.D.2d 635, 151 N.Y.S.2d 861, 1956 N.Y. App. Div. LEXIS 5496

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 10, 1956

StatusPublished

This text of 2 A.D.2d 635 (Dery v. Kelly) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dery v. Kelly, 2 A.D.2d 635, 151 N.Y.S.2d 861, 1956 N.Y. App. Div. LEXIS 5496 (N.Y. Ct. App. 1956).

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Opinion

Proceeding under article 78 of the Civil Practice Act to review a determination made by respondent, after a hearing, revoking petitioner’s license to operate a motor vehicle on the ground that petitioner had violated section 58 of the Vehicle and Traffic Law which pertains to reckless driving. On the night of the accident, petitioner had spent seven hours in a bar. While there he drank three bottles of beer and ate two sandwiches. Feeling sleepy, he left the bar at approximately 1:30 A.M., to drive to his home. He fell alseep after driving about 20 miles and his auto left the highway striking 11 guardrails, two of which were knocked to the ground. The hearing referee found that petitioner started to drive when he was feeling sleepy, drove without taking any steps to correct his condition until he finally fell asleep at the wheel and concluded that such conduct constituted [636]*636driving in a reckless manner. There is substantial evidence in the record to support the finding that petitioner had advance warning of the sleepy condition which caused the accident. That is a sufficient basis for respondent’s revocation of the license for reckless driving. (Matter of Hernigle v. Macduff, 305 N. Y. 367; Matter of Murphy v. Kelly, 1 A D 2d 922.) Determination unanimously confirmed, without costs. Present — Foster, P. J., Bergan, Coon, Halpern and Zeller, JJ.

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Proceeding under article 78 of the Civil Practice Act to review a determination made by respondent, after a hearing, revoking petitioner’s license to operate a motor vehicle on the ground that petitioner had violated section 58 of the Vehicle and Traffic Law which pertains to reckless driving. On the night of the accident, petitioner had spent seven hours in a bar. While there he drank three bottles of beer and ate two sandwiches. Feeling sleepy, he left the bar at approximately 1:30 A.M., to drive to his home. He fell alseep after driving about 20 miles and his auto left the highway striking 11 guardrails, two of which were knocked to the ground. The hearing referee found that petitioner started to drive when he was feeling sleepy, drove without taking any steps to correct his condition until he finally fell asleep at the wheel and concluded that such conduct constituted [636]*636driving in a reckless manner. There is substantial evidence in the record to support the finding that petitioner had advance warning of the sleepy condition which caused the accident. That is a sufficient basis for respondent’s revocation of the license for reckless driving. (Matter of Hernigle v. Macduff, 305 N. Y. 367; Matter of Murphy v. Kelly, 1 A D 2d 922.) Determination unanimously confirmed, without costs. Present — Foster, P. J., Bergan, Coon, Halpern and Zeller, JJ.

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Bluebook (online)

2 A.D.2d 635, 151 N.Y.S.2d 861, 1956 N.Y. App. Div. LEXIS 5496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dery-v-kelly-nyappdiv-1956.

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