Matter of Hickey v. Schroeder
Opinion
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Bureau Thomas J.K. Smith, State Reporter
Matter of Hickey v Schroeder
2026 NY Slip Op 04304
July 8, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
In the Matter of Daniel G. Hickey, Jr., petitioner,
v
Mark J. F. Schroeder, etc., respondent.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 8, 2026
2023-09318, (Index No. 52305/23)
Mark C. Dillon, J.P.
Valerie Brathwaite Nelson
Carl J. Landicino
Susan Quirk, JJ.
Larkin Ingrassia, PLLC, Newburgh, NY (Derek S. Andrews of counsel), for petitioner.
Letitia James, Attorney General, New York, NY (Judith N. Vale and Cleland B. Welton II of counsel), for respondent.
DECISION & JUDGMENT
Proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Motor Vehicles Administrative Appeals Board dated May 30, 2023, affirming a determination of an administrative law judge dated January 19, 2023, which, after a hearing, found that the petitioner refused to submit to a chemical test in violation of Vehicle and Traffic Law § 1194 and revoked his driver license.
ADJUDGED that the determination dated May 30, 2023, is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
The petitioner was arrested for operating a motor vehicle while intoxicated. After a hearing, an administrative law judge (hereinafter the ALJ) determined that the petitioner violated Vehicle and Traffic Law § 1194 by refusing to submit to a chemical test and imposed the mandatory revocation of the petitioner's driver license. Thereafter, in a determination dated May 30, 2023, the New York State Department of Motor Vehicles Administrative Appeals Board (hereinafter the Appeals Board) affirmed the ALJ's determination. The petitioner commenced this proceeding pursuant to CPLR article 78 to review the determination of the Appeals Board. In an order dated September 29, 2023, the Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804(g).
To annul the subject determination, this Court must conclude that the record lacks substantial evidence to support the determination (see CPLR 7803[4]; Matter of Ball v Schroeder, 235 AD3d 862, 863; Matter of Kirch v New York State Dept. of Motor Vehs., 232 AD3d 791). "Substantial evidence is such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Matter of Roenbeck v New York State Dept. of Motor Vehs., 221 AD3d 1013, 1014 [internal quotation marks omitted]). "Substantial evidence is a 'minimal standard' that requires 'less than a preponderance of the evidence' and 'demands only that a given inference is reasonable and plausible, not necessarily the most probable'" (Matter of Kirch v New York State Dept. of Motor Vehs., 232 AD3d at 792, quoting Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d 1044, 1045-1046). "Where substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter [*2]differently" (Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d at 1046; see Matter of Kelly v Farmingdale State Coll., State Univ. of N.Y., 215 AD3d 748, 750), as "[i]t is the function of the administrative agency, not the reviewing court, to weigh the evidence or assess the credibility of the witnesses" (Matter of Phelps v State of N.Y.—Unified Ct. Sys., 208 AD3d 880, 881 [internal quotation marks omitted]; see Matter of Citizens for the Preserv. of Wainscott, Inc. v New York State Pub. Serv. Commn., 216 AD3d 769, 772).
Here, the determination that the petitioner violated Vehicle and Traffic Law § 1194 by refusing to submit to a chemical test is supported by substantial evidence (see Matter of Ball v Schroeder, 235 AD3d at 863-864; Matter of Kirch v New York State Dept. of Motor Vehs., 232 AD3d at 792; Matter of Schoonmaker v New York State Dept. of Motor Vehs., 165 AD3d 677, 678, affd 33 NY3d 926). The hearing evidence, including the testimony of the arresting trooper and the video footage taken from that trooper's body camera, as well as the negative inference drawn from the petitioner's failure to testify, demonstrated that the trooper had reasonable grounds to believe that the petitioner had been operating a motor vehicle while under the influence of alcohol in violation of Vehicle and Traffic Law § 1192 and that the trooper made a lawful arrest of the petitioner (see Matter of Rodriguez v New York State Dept. of Motor Vehs., 237 AD3d 1202, 1204; Matter of Roenbeck v New York State Dept. of Motor Vehs., 221 AD3d at 1015; Matter of Crowder v Fiala, 175 AD3d 1408, 1409). Moreover, the trooper's testimony, the written report of the petitioner's refusal to submit to a chemical test, and the negative inference drawn from the petitioner's failure to testify demonstrated that the petitioner refused to submit to a chemical test after having been given sufficient warnings of the consequences of said refusal (see Matter of Ball v Schroeder, 235 AD3d at 864; Matter of Kirch v New York State Dept. of Motor Vehs., 232 AD3d at 792; Matter of Roenbeck v New York State Dept. of Motor Vehs., 221 AD3d at 1015).
Contrary to the petitioner's contention, the ALJ properly relied upon an adverse inference from the petitioner's failure to testify (see 15 NYCRR 127.5[b]; Matter of Schoonmaker v New York State Dept. of Motor Vehs., 165 AD3d at 678; Matter of Hickey v New York State Dept. of Motor Vehs., 142 AD3d 668, 669).
"Unlike the constitutional right to confrontation in criminal matters, parties in administrative proceedings have only a limited right to cross-examine adverse witnesses as a matter of due process" (Matter of Hildreth v New York State Dept. of Motor Vehs. Appeals Bd., 83 AD3d 838, 840). Here, the ALJ providently exercised her discretion in limiting the petitioner's questions during cross-examination of the arresting trooper as speculative, cumulative, or irrelevant to the proceeding (see id. at 841).
The petitioner's remaining contention is without merit.
DILLON, J.P., BRATHWAITE NELSON, LANDICINO and QUIRK, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court
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