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BRETT D. BERSANI V NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES

BRETT D. BERSANI V NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES

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IN THE MATTER OF BRETT D. BERSANI, PETITIONER,V NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES,RESPONDENT.HOGANWILLIG, PLLC, AMHERST (REBECCA M. KUJAWA OF COUNSEL), FORPETITIONER.BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OFCOUNSEL), FOR RESPONDENT.Proceeding pursuant to CPLR article 78 (transferred to theAppellate Division of the Supreme Court in the Fourth JudicialDepartment by an order of the Supreme Court, Erie County [Joseph R.Glownia, J.], entered December 20, 2017) to review a determination ofrespondent. The determination revoked petitioner’s driver’s license.It is hereby ORDERED that the determination is unanimouslyconfirmed without costs and the petition is dismissed.Memorandum: Petitioner commenced this proceeding pursuant toCPLR article 78 seeking to annul the determination revoking hisdriver’s license based on his refusal to submit to a chemical testfollowing his arrest for driving while intoxicated (DWI). We confirmthe determination. Contrary to petitioner’s contention, thedetermination is supported by substantial evidence. The hearingtestimony of the arresting officer, along with his refusal report,which was entered in evidence, established that petitioner refused tosubmit to the chemical test after he was arrested for DWI (see Vehicleand Traffic Law § 1194 [2] [a] [1]; see generally Matter ofHuttenlocker v New York State Dept. of Motor Vehs. Appeals Bd., 156AD3d 1464, 1464 [4th Dept 2017]). The Administrative Law Judge wasentitled to discredit any testimony to the contrary (see Huttenlocker,156 AD3d at 1464; Matter of Mastrodonato v New York State Dept. ofMotor Vehicles, 27 AD3d 1121, 1122 [4th Dept 2006]). Petitioner’sremaining contentions are raised for the first time in this proceedingpursuant to CPLR article 78, and he therefore failed to exhaust hisadministrative remedies with respect to those contentions (seeMastrodonato, 27 AD3d at 1122).Entered: June 8, 2018 Mark W. BennettClerk of the Court

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