Truskolaski v. Passidomo

123 A.D.2d 705, 507 N.Y.S.2d 70, 1986 N.Y. App. Div. LEXIS 60845

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of Motor Vehicles dated June 24, 1985, which, following a hearing and administrative review, suspended the petitioner’s driver’s license for 90 days.

Adjudged that the petition is granted, on the law, without costs or disbursements, to the extent of vacating the penalty imposed, proceeding otherwise dismissed on the merits, and the matter is remitted to the Commissioner of Motor Vehicles for the imposition of a new penalty which shall not exceed a suspension of petitioner’s operator’s license for a period of 30 days.

Although the determination of the Commissioner of Motor Vehicles was supported by substantial evidence, we find that the penalty imposed is so disproportionate to the offense, in light of all circumstances, as to shock one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222). The petitioner evinced only a minimal degree of culpability and her 30-year driving record is unblemished. Moreover, the petitioner is employed as a school bus driver and needs her driver’s license in order to pursue her livelihood (see, Matter of Bieber v Passidomo, 104 AD2d 882; Matter of Hunkins v Tofany, 38 AD2d 879). Under all of the circumstances, the petition should be granted to the extent of vacating the penalty of suspension for 90 days and remitting the matter to the Commissioner for the imposition of a new penalty which shall not exceed a suspension of petitioner’s license for a period of 30 days. Lazer, J. P., Mangano, Lawrence and Kooper, JJ., concur.