Kahn v. State of New York Department of Motor Vehicles

134 A.D.2d 594, 521 N.Y.S.2d 494, 1987 N.Y. App. Div. LEXIS 50802

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1987
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Department of Motor Vehicles, dated May 22, 1986, which sustained a finding of an Administrative Law Judge that the petitioner had violated Vehicle and Traffic Law § 1111 (d) (1) and imposed a fine of $50.

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

The determination that the petitioner violated Vehicle and Traffic Law § 1111 (d) (1) is supported by substantial evidence in the record and must be confirmed (see, Matter of McKenzie v Fisher, 39 NY2d 103). The petitioner’s challenge to the administrative determination rests primarily upon an issue of credibility which was for the hearing body to resolve (see, Matter of Silberfarb v Board of Coop. Educ. Servs., 60 NY2d 979; Matter of Collins v Codd, 38 NY2d 269, 270-271). The testimony of the police officer who issued the summons to the petitioner was not incredible as a matter of law, and was sufficient by itself to sustain the respondent’s burden of proving by clear and convincing evidence (see, Vehicle and Traffic Law § 227 [1]) that the petitioner violated Vehicle and Traffic Law § 1111 (d) (1) by driving his vehicle through a steady red signal.

We further find that the petitioner was accorded a fair and full review upon his administrative appeal before the respondent. Thompson, J. P., Niehoff, Rubin and Sullivan, JJ., concur.