JLM Auto Repair, Inc. v. Martinez

309 A.D.2d 503, 765 N.Y.S.2d 241, 2003 N.Y. App. Div. LEXIS 10003

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 2, 2003
• Status: Published

Opinion

Determination of respondent Commissioner of the Department of Motor Vehicles, dated August 20, 2002, finding that petitioner motor vehicle repair shop charged a customer for repairs it did not perform and submitted a false bill to respondent’s inspector investigating the claim, in violation of Vehicle and Traffic Law § 398-e (1) (g), and failed to include required information on the customer’s invoice, in violation of 15 NYCRR 82.5 (b) and (c), suspending petitioner’s repair shop registration for 30 days and imposing a civil penalty of $2,069 ($300 for each violation plus $869 in restitution), to be reduced to $1,269 ($100 for each violation plus $869 in restitution) if paid within 30 days, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Sheila Abdus-Salaam, J.], entered on or about January 9, 2003), dismissed, without costs.

Respondent’s findings are supported by substantial evidence, including the testimony of its inspector who inspected the complainant’s car and determined that the fuel tank was never removed, and the affidavit of the subcontractor which allegedly cleaned the fuel tank, that it does not do such work and did not issue the invoice that petitioner claimed proved such work. No basis exists to disturb respondent’s findings of credibility (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]), which, we note, resolved conflicting testimony implicating respondent’s special competence in auto mechanics. The penalty imposed does not shock our sense of fairness. Concur— Buckley, P.J., Tom, Ellerin, Marlow and Gonzalez, JJ.