T's Auto Care, Inc. v. New York State Department of Motor Vehicles Appeals Board

15 A.D.3d 881, 789 N.Y.S.2d 582, 2005 NY Slip Op 743, 2005 N.Y. App. Div. LEXIS 1163

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 2005
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Monroe County [Andrew V Siracuse, J.], entered August 6, 2004) to review a determination of respondent. The determination, insofar as challenged in this proceeding, found that petitioner had committed a fraud or fraudulent practice and revoked petitioner’s dealer registration.

It is hereby ordered that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 78 to challenge those parts of respondent’s determination finding that it committed a fraud or fraudulent practice and revoking its automobile dealer registration {see Vehicle and Traffic Law § 415 [9] [c]). Substantial evidence supports the determination that petitioner participated in a fraudulent transaction in which a customer paid for an automobile that he did not receive. “The public has a right to be protected against deceitful practices by an auto dealer” (Matter of Acer v State of New York Dept. of Motor Vehs., 175 AD2d 618, 618 [1991]), and, under the circumstances, the penalty is not “so disproportionate to the offense as to be shocking to one’s sense of fairness” (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 237 [1974]). Present — Pigott, Jr., PJ., Green, Gorski, Martoche and Hayes, JJ.