Sterling Car Mart, Inc. v. Adduci

198 A.D.2d 829, 605 N.Y.S.2d 998, 1993 N.Y. App. Div. LEXIS 11441

Opinion

—Determination unanimously modified on the law and as modified confirmed without costs and matter remitted to respondent for further proceedings in accordance with the following Memorandum: In this article 78 proceeding, petitioner auto dealer challenges respondent’s determination that it committed two violations of the Vehicle and Traffic Law and four violations of respondent’s regulations in the sale of a 1981 Buick Skylark. In Matter of Sterling Car Mart v Adduci (proceeding No. 2), respondent conceded that a determination against petitioner identical to the determination herein (Charge 11) must be vacated because the regulation does not apply to petitioner, and we annul, therefore, respondent’s determination on Charge 11. We conclude that there is a rational basis in the record for respondent’s determination on the remaining charges and confirm that determination. Because respondent’s determination on Charge 11 is annulled, and because the record does not specify any relation between the violation and respondent’s determination to suspend petitioner’s license for 20 days, the penalty imposed is vacated and the matter is remitted to respondent for imposition of an appropriate penalty on the sustained charges (see, Matter of Ligreci v Honors, 171 AD2d 1058, Iv denied 78 NY2d 853). (Article 78 Proceeding Transferred by Order of Supreme Court, Erie County, Gorski, J.) Present — Callahan, J. P., Pine, Lawton, Doerr and Davis, JJ.