Korotki v. Tofany

38 A.D.2d 738, 329 N.Y.S.2d 340, 1972 N.Y. App. Div. LEXIS 5532

Opinion

Proceeding pursuant to article 78 of the CPLR to annul respondent’s determination dated January 29, 1970, which revoked petitioner’s license to operate a motor vehicle. Determination confirmed and petition dismissed, without costs. The evidence adduced before the Referee at the revocation hearing presented close questions as to whether (a) petitioner had actually been operating the automobile in question and intended to drive it at the time he was arrested for driving in an intoxicated condition, (b) petitioner was intoxicated or reacting to medication he had been taking under his physician’s direction and prescription and (c) petitioner comprehended the questions and warning given to him at the station house under section 1194 of the Vehicle and Traffic Law, because of his alleged reaction to medication he claimed he had taken that day. Nevertheless, since substantial evidence was received which would justify respondent’s determination, the determination should be confirmed (cf. Matter of Haywood v. Craig Colony, 7 A D 2d 69, 72, affd. 6 N Y 2d 752). Martuscello, Acting P. J., Latham, Christ, Brennan and Benjamin, JJ., concur.