Calendar Date: April 25, 2018Before: Garry, P.J., Lynch, Clark, Aarons and Rumsey, JJ.__________Towne, Ryan & Partners, PC, Albany (James T. Towne Jr. ofcounsel), for petitioner.Barbara D. Underwood, Attorney General, Albany (Allyson B.Levine of counsel), for respondents.__________Rumsey, J.Proceeding pursuant to CPLR article 78 (transferred to thisCourt by order of the Supreme Court, entered in Albany County) toreview a determination of respondent Department of Motor Vehiclessuspending petitioner’s motor vehicle dealer’s license andlicense to operate a repair shop, and assessing civil penalties.On July 22, 2014, petitioner, a used car dealer, sold aused 2006 BMW to Russell Wells Jr. and Kelly Murphy (hereinaftercollectively referred to as the purchasers). After delivery, thepurchasers discovered that the vehicle required significantrepairs. After petitioner made certain repairs to the vehicle,the purchasers took the vehicle to a franchised BMW dealership(hereinafter the dealership), where inspection revealed that therepairs made by petitioner had been improperly performed. Thepurchasers filed a complaint with respondent Department of MotorVehicle (hereinafter DMV). After an investigation, DMV chargedpetitioner with violating 15 NYCRR 78.13 (c), for failing toinspect the vehicle before delivery, and with violating Vehicleand Traffic Law § 417, for falsely certifying that the vehiclewas roadworthy. DMV also charged petitioner with willfullyfailing to provide quality repairs pursuant to 15 NYCRR 82.5 (g).All charges were sustained following a hearing. The penaltiesimposed for violating 15 NYCRR 78.13 (c) and Vehicle and TrafficLaw § 417 consisted of a $1,000 fine for each violation andconcurrent suspension of petitioner’s license to operate adealership for 180 days. The penalty imposed for violating 15NYCRR 82.5 (g) was a $750 fine and suspension of petitioner’slicense to operate a repair shop for 90 days. Uponadministrative appeal, DMV’s Appeals Board affirmed theAdministrative Law Judge’s determination. Petitioner thereaftercommenced this CPLR article 78 proceeding seeking to annul thedetermination, which was transferred to this Court.The determination must be upheld if it is supported bysubstantial evidence in the record (see Matter of Khan AutoServ., Inc. v New York State Dept. of Motor Vehs., 123 AD3d 1258,1260 [2014]).1 As relevant here, testimony was adduced at thehearing showing that the vehicle’s engine had a significant oilleak and that the dealership also determined that a rear brakepad sensor was broken. These two conditions were the basis forDMV’s determination that petitioner had failed to properlyinspect the vehicle prior to sale, pursuant to 15 NYCRR 78.13(c), and that it falsely certified that the vehicle wasroadworthy, in violation of Vehicle and Traffic Law § 417.15 NYCRR 78.13 (c) mandates that used vehicles be inspectedprior to sale by requiring that 18 items of equipment beinspected for compliance with specified standards. Notably, thevehicle’s engine was not included among the items subject toinspection, and there is no evidence that the defective rearbrake sensor resulted in the vehicle failing to meet thespecified standards applicable to brakes (see 15 NYCRR 78.13 [c][15]). Accordingly, the determination that petitioner violated15 NYCRR 78.13 (c) is not supported by substantial evidence.Vehicle and Traffic Law § 417 requires that a retail dealercertify to a purchaser of any used motor vehicle that the vehiclecomplies with DMV regulations and, further, “that it is incondition and repair to render, under normal use, satisfactoryand adequate service upon the public highway at the time ofdelivery” (Vehicle and Traffic Law § 417). Thus, the mandatedcertification is two-fold — a dealer must certify that thevehicle was inspected in accordance with 15 NYCRR 78.13 (c) and,further, that the vehicle is roadworthy, as required by Vehicleand Traffic Law § 417 and 15 NYCRR 78.13 (b). The requirementthat a vehicle be in a condition to render satisfactory serviceupon public highways is not satisfied when all of the itemssubject to inspection under 15 NYCRR 78.13 (c) meet the specifiedstandards; rather, the condition of the entire vehicle must beconsidered (see Carter v General Motors Corp., 273 AD2d 804, 804[2000]; see also Matter of Smith Pontiac-GMC v Commissioner ofDept. of Motor Vehs., 170 AD2d 933, 934 [1991]). In Matter ofSmith Pontiac-GMC v Commissioner of Dept. of Motor Vehs. (supra),we held that “[i]t necessarily follow[ed]” from alleged problemswith the vehicle’s engine that the certification that had beenprovided pursuant to Vehicle and Traffic Law § 417 was false (id.at 934).2 Here, evidence that the engine had a significant oilleak — which resulted in oil running down the side of the engineand coating the underside of the car — and a broken rear brakesensor was sufficient to support a determination that the vehiclewas not in a condition to render satisfactory service. Thus,DMV’s determination that petitioner violated Vehicle and TrafficLaw § 417 is supported by substantial evidence.Petitioner was also charged with violating 15 NYCRR 82.5(g) by willfully failing to make quality repairs, which aredefined as “those repairs held by those having knowledge andexpertise in the automotive field to be necessary to bring amotor vehicle to its premalfunction or predamage condition” (15NYCRR 82.13 [a]). As relevant here, a license may be suspendedor a civil penalty imposed only when the failure to make qualityrepairs is willful (see Vehicle and Traffic Law § 398-e [1] [i]).An action is willful when it is “performed knowingly,intentionally or deliberately” (Matter of Cervini Car Wash vAdduci, 167 AD2d 751, 752 [1990] [internal quotation marks andcitations omitted]). Petitioner attempted to repair the oil leakby replacing a single broken head bolt. The vehicle wasthereafter inspected by the BMW dealership, which determined thatpetitioner’s repair was unsuccessful because the engine continuedto leak oil. The dealership also stated that petitioner’sattempt to repair the leak by replacing only the broken head boltdid not meet standard automotive industry practices, whichrequire that the head gasket and all head bolts be replaced. Thedealership also noted that petitioner used an incorrectreplacement bolt. Vehicle specifications required that theexterior head bolt that petitioner replaced be aluminum toprevent electrochemical corrosion. Petitioner replaced thebroken bolt with a steel bolt that had to be cut to complete theinstallation. The broken bolt that was removed and the properreplacement bolt — both made of aluminum — were noticeablylighter than the steel bolt that was improperly installed bypetitioner. This evidence was sufficient to establish thatpetitioner’s efforts did not constitute a quality repair.Moreover, the lack of compliance with industry standards and theinstallation of the steel bolt that was noticeably different thanthe required aluminum bolt are sufficient to establish thatpetitioner’s technician knew, or should have known, that therepair was improper and, therefore, establishes that theviolation was willful. Accordingly, the determination thatpetitioner violated 15 NYCRR 82.5 (g) was supported bysubstantial evidence.Finally, we reject petitioner’s argument that the penaltiesimposed were excessive and disproportionate to the allegedmisconduct. The suspension and civil penalties imposed are notso disproportionate to the offenses as to shock our sense offairness, particularly since the fines that were imposed forpetitioner’s 12 prior violations of a similar nature did notdeter additional misconduct (see Matter of Khan Auto Serv., Inc.v New York State Dept. of Motor Vehs., 123 AD3d at 1260; Matterof Mauboussin v Jackson, 302 AD2d 630, 632 [2003]).Garry, P.J., Lynch, Clark and Aarons, JJ., concur.ADJUDGED that the determination is modified, without costs,by annulling so much thereof as sustained the charge thatpetitioner violated 15 NYCRR 78.13 (c); petition granted to thatextent and the fine and period of suspension imposed for suchviolation vacated; and, as so modified, confirmed.ENTER:Robert D. MaybergerClerk of the Court
