Galante v. Commissioner of Motor Vehicles

253 A.D.2d 763, 677 N.Y.S.2d 483, 1998 N.Y. App. Div. LEXIS 9417

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 14, 1998
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Motor Vehicles Appeals Board, dated August 1, 1997, which affirmed the decision of an Administrative Law Judge finding that the petitioner refused to submit to a chemical test for the purpose of determining the alcoholic content of his blood and revoking the petitioner’s driver’s license for six months.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

There was substantial evidence to support the determination that the petitioner refused to consent to a chemical test to determine his blood alcohol level after being clearly and unequivocally provided with the statutory warning pursuant to Vehicle and Traffic Law § 1194 (2) (b) (see, Matter of DelCastello v Adduci, 225 AD2d 695; Matter of Boyce v Commissioner of N. Y. State Dept. of Motor Vehicles, 215 AD2d 476; Matter of Gatto v Adduci, 182 AD2d 760; Matter of Geary v Commissioner of Motor Vehicles of State of N. Y., 92 AD2d 38, affd 59 NY2d 950). The conflict between the testimony of the arresting officer and that of the petitioner presented an issue of credibility to be resolved by the Administrative Law Judge (see, Matter of Berenhaus v Ward, 70 NY2d 436, 443-444; Matter of Holland v Commissioner of N. Y. State Dept. of Motor Vehicles, 213 AD2d 637; Matter of Abdelrahman v New York State Liq. Auth., 209 AD2d 405). Rosenblatt, J. P., Sullivan, Joy, Altman and Luciano, JJ., concur.