De Rooy v. Martinez

1140 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 [Robert J. Lunn, J], entered February 24, 2004) to review a determination of respondent. The determination, after a hearing, revoked petitioner’s driver’s license. 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 CPLR article 78 proceeding seeking to annul the determination revoking his driver’s license based on his violation of Vehicle and Traffic Law § 1141, which resulted in an accident causing the death of a person operating a motorcycle. Contrary to petitioner’s contention, the determination is supported by substantial evidence (see Matter of Mabins v New York State Dept. of Motor Vehs. Appeals Bd., 294 AD2d 933 [2002]; see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182 [1978]). The hearing testimony establishes that petitioner failed to yield the right of way to decedent, whose motorcycle was “so close” to the intersection “as to constitute an immediate hazard” when petitioner attempted to make a left turn (Vehicle and Traffic Law § 1141). Contrary to petitioner’s further contention, the penalty of revocation is not shocking to one’s sense of fairness under the circumstances of this case (see generally Matter of Kelly v Safir, 96 NY2d 32, 38 [2001], rearg denied 96 NY2d 854 [2001]). We have examined petitioner’s remaining contentions and conclude that they are lacking in merit. Present—Hurlbutt, J.P., Gorski, Martoche, Smith and Hayes, JJ.