Material Damage Adjustment Corp. v. Whelan

137 A.D.2d 797, 525 N.Y.S.2d 344, 1988 N.Y. App. Div. LEXIS 1954

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 29, 1988
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of Department of Motor Vehicles, dated September 23, 1986, which (1) affirmed findings made after a hearing that the petitioner had violated (a) Vehicle and Traffic Law § 398-e (1) (j) by know;ingly issuing a false and misleading estimate and (b) Vehicle and Traffic Law § 398-e (1) (k) by engaging in a course of conduct which unreasonably impeded or delayed a consumer’s right to a fair recovery in an insurance claim case, and (2) imposed a $700 civil penalty and five-day suspension of the petitioner’s drive-in appraisal facility license.

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

On this record, there was substantial evidence to support the Commissioner’s determination as to each of the violations (see, Matter of Hannon v Cuomo, 52 NY2d 775). Furthermore, in light of both the limited scope of appellate review in such matters (see, Matter of Pell v Board of Educ., 34 NY2d 222) and the petitioner’s prior record, we cannot agree with the petitioner that the measure of punishment imposed upon it was so disproportionate to the charge sustained "as to be shocking to one’s sense of fairness” (Matter of Stolz v Board of Regents, 4 AD2d 361, 364; see, Dunn Appraisal Co. v Foschio, 94 AD2d 695; Government Employees Ins. Co. v Commissioner of Motor Vehicles, 94 AD2d 695). Thompson, J. P., Brown, Lawrence and Weinstein, JJ., concur.