Miranda v. Adduci

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York State Department of Motor Vehicles dated March 31, 1989, which sustained the finding of an Administrative Law Judge that the petitioner had violated Vehicle and Traffic Law § 1128 (a), and imposed a fine of $35 and a surcharge of $10. Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs. The determination that the petitioner violated Vehicle and Traffic Law § 1128 (a) is supported by substantial evidence and must be confirmed (see, Matter of McKenzie v Fisher, 39 NY2d 103; Matter of Kahn v State of N. Y. Dept. of Motor Vehicles, 134 AD2d 594). The petitioner’s challenge to the administrative determination rests largely upon an issue of credibility which was primarily for the fact-finder to resolve (see, Matter of Silherfarb v Board of Coop. Educ. Servs., 60 NY2d 979; Matter of Collins v Codd, 38 NY2d 269). The testimony of the police officer that he observed the petitioner making an unsafe lane change on his motorcycle was not incredible as a matter of law and was sufficient to sustain the Commissioner’s determination (see, Matter of Ballen v Commissioner of Motor Vehicles, 147 AD2d 560; Matter of Martin v Adduci, 138 AD2d 599). We have reviewed the petitioner’s remaining contentions and find them to be without merit. Brown, J. P., Kooper, Harwood and Miller, JJ., concur.