Papers considered on Petition:Notice of Petition & Supporting Papers 1Verified Answer and Objections in Point of Law 2Reply Affirmation 3For a Judgment Under Article 78 and Section 3001 of the Civil Practice Law and RulesIn this hybrid CPLR Article 78 proceeding/declaratory judgment action, the Petition herein seeks an Order and Judgment of the Court, pursuant to CPLR Article 78 and/or Section 3001 declaring:(a) That Respondents have acted unconstitutionally, illegally, unlawfully, arbitrarily and capriciously, without or in excess of their jurisdiction, in violation of lawful procedure, in a manner that constituted an abuse of discretion, and/or in a manner that failed to perform a duty enjoined upon them by law;(b) The Respondents’ new regulations, which took effect on September 25, 2012, and which were thereafter applied retroactively to Petitioner’s application for re-licensure, are unconstitutional, illegal, unlawful, arbitrary and capricious, ultra vires, and/or constitute an abuse of discretion; and/or(c) That Petitioner’s application for re-licensure should be granted, or, at a minimum, be reviewed under the rules and regulations that were in existence at the time of Petitioner’s most recent conviction of a revocable offense; together with such other and further relief as the Court may deem just and proper.(d) The record, taken as a whole, demonstrates that Respondents acted in an arbitrary and capricious manner, and pursuant to its existing rules, and in a proper exercise of its discretion, at the very least should relicense Petitioner with a conditional use license.(e) That in the alternative, an Order should be granted directing the Department of Motor Vehicles Appeals Board to hear and determine Gary S. Kerpen appeal under Appeal Docket #40537, Case #1703384 on the merits of the case, as the decision to reject the appeal on the basis of timeliness was arbitrary and carious.More specifically, Petitioner seeks an Order and Judgment, pursuant to CPLR Article 78 and/or Section 3001 finding/declaring:(a) That Respondents’ regulations illegally conflict with VTL §1129(a);(b) That the 25-year look-back portion of Respondents new regulations illegally conflicts with numerous statutes;(c) That the multiple new lifetime license revocations contained in Respondents’ new regulations illegally conflict with VTL §1129(a);(d) That Respondents’ new regulations violate the separation of powers doctrine;(e) That to the extent that existing statues can be read to delegate unbridled discretion to Respondents, such statutes are unconstitutional;(f) That to the extent that existing statutes do lawfully delegate authority to Respondents, Respondents have exceeded the limits of such authority;(g) That Respondents’ new regulations violate the Ex Post Facto clause;(h) That Respondents’ new regulations violate the presumption that new regulations apply prospectively;(i) That Respondents’ new regulations violate due process;(j) That Respondents’ new regulations are arbitrary and capricious; and/or(k) Assuming, arguendo, that the Court rejects all of the assertions set forth above, the Respondents acted arbitrary and capriciously in denying Petitioner’s re-licensure application and, further, in failing to consider granting Petitioner a conditional use license.Based upon all of the papers submitted for this Court’s consideration, the Court makes the following findings of fact:On March 30, 2015, the Petitioner was involved in a four (4) car chain-reaction accident that resulted in the death of one (1) woman and injuries to others.As a consequence of this motor vehicle collision, the Petitioner was charged and convicted of violating New York State Vehicle and Traffic Law Section 1129(a) for following too closely in the operation of his motor vehicle.On April 27, 2012 and August 11, 2002, the Petitioner was involved in motor vehicle accidents in which he was the operator of one (1) of the motor vehicles involved in the said accidents.Between the year 2002 and the date of the March 30, 2015 motor vehicle accident, the Petitioner was charged with and convicted of seven (7) violations of the New York State Vehicle and Traffic Law.After an August 4, 2015 hearing held, pursuant to New York State Vehicle and Traffic Law Section 510-3, before a New York State Department of Motor Vehicles Safety Hearing Bureau Administrative Law Judge, the New York State Department of Motor Vehicles on August 13, 2015 issued an order to Gary S. Kerpen, the Petitioner herein, which stated in pertinent part:Your New York State driver license is revoked effective 08/27/2015 for at least 30 days after a hearing on 08/04/2015 at the town of Hauppauge. This action is taken under Section 5103 of the Vehicle and Traffic Law.CAUSE Violation of Section 1129(a) of the Vehicle and Traffic Law following another vehicle more closely than is reasonable and prudent having due regard for the speed of such vehicles and traffic condition of the highway on 3/30/2015 in Suffolk County.YOU ARE NOT ELIGIBLE FOR A RESTRICTED USE LICENSE/PRIVILEGE BECAUSE THIS CONVICTION ADJUDICATION AND/OR FINDING INVOLVES A FATAL ACCIDENT.If you drive while your license/driving privilege is suspended/revoked unless you receive a restricted/conditional license/privilege from DMV, you may be charged with and convicted of a crime and be subject to fine and/or imprisonment.The Petitioner does not deny receiving this order.Thereafter, on August 27, 2015, the Petitioner herein filed a New York State Department of Motor Vehicles Administrative Appeal Form (AA-33A) wherein this Petitioner proffered:…neither motorist nor attorney for motorist ever received notification of the hearing motorist has a valid and proper defense to the matter and facts as believed by the judge as the police and others were not present at time of the accident motorist is one best able to explain facts of event motorist requests his right to be present at the hearing.The New York State Department of Motor Vehicles Administrative Appeals Board’s September 29, 2015 decision denied the appeal of Gary S. Kerpen, the Petitioner herein.On June 1, 2016, the Petitioner herein was convicted of driving while his license was revoked as well as two (2) moving violations all of which occurred on December 29, 2015 while his driver’s license was revoked.On August 19, 2016, the Petitioner herein submitted an application for a driver’s license to the New York State Department of Motor Vehicles Driver Improvement Bureau.By a decision pursuant to 15 NYCRR Sections 136.4(b) (1) and 136.4(d) dated September 12, 2017, the New York State Department of Motor Vehicles Driver Improvement Bureau denied the said Petitioner’s aforesaid application for a driver’s license and concluded with the following admonitions:You have the following option:1. Take no further action; or2. SUBMIT A LETTER TO THE DRIVER IMPROVEMENT BUREAU AT THE ABOVE ADDRESS WITHIN SIXTY (60) DAYS OF THE DATE OF THIS LETTER requesting reconsideration IF you have unusual, extenuating, and compelling circumstances that you believe would justify approval of your driver’s license application.• The letter to the Driver Improvement Bureau must explain in detail each circumstance that you want reviewed.• The letter to the Driver Improvement Bureau must provide credible, verifiable documentation to support all circumstances claimed. Example: If you need a license to drive yourself or a family member to necessary medical treatment, you must provide documentation verifying and explaining the nature of the medical condition and proving that there is no other transportation (including affordable private and public transportation) that may be used to get to necessary medical treatment.• The letter to the Driver Improvement Bureau must include any documentation that was submitted with your initial application regarding unusual, extenuating, and compelling circumstances.• If the letter to the Driver Improvement Bureau is late, it will not be considered, and this denial will be FINAL. Your letter must be submitted to the Driver Improvement Bureau WITHIN SIXTY (60) DAY OF THE DATE OF THIS LETTER; or3. SUBMIT AN APPEAL FORM, APPEAL FEE AND COPY OF THIS DENIAL LETTER to the DMV Appeals Board WITHIN (60) DAYS OF THE DATE OF THIS LETTER to appeal the denial of your application for re-licensure. (See appeal instructions in the enclosed VS-500). By law, the Appeals Board is not authorized to consider an appeal that is filed in an untimely manner, or to review any arguments or materials that have NOT been previously submitted to and considered by the Driver Improvement Bureau. Do not submit claims of unusual, extenuating and compelling circumstances to the Appeal Board; or4. SUBMIT ANOTHER APPLICATION FOR RE-LICENSURE TO THE DRIVER IMPROVEMENT BUREAU. Although you may submit an application for a new driver license at any time, please be aware the Driver Improvement Bureau will review your entire driving history based upon the same standards that resulted in this denial. Each application is also subject to the statutory $100.00 fee.On November 6, 2017, the attorney for Gary S. Kerpen overnighted a letter addressed to the Department of Motor Vehicles Driver Improvement Bureau wherein he presented purported unusual, extenuating and compelling circumstances that would warrant approval of his driver’s license application wherein he proffered:My client has had many job opportunities that require a valid license. Due to his inability to procure a driver’s license, he has been unable to secure the job opportunities.The unusual, extenuating, and compelling circumstances that would justify approval of my client’s driver’s license is based on the facts that New York State Department of Motor Vehicles revoked my client’s New York State Driver’s License for at least 30 days on August 27, 2015, and it has taken over two years (2) for your agency to render an arbitrary and capricious decision lacking any factual basis to deny my client his driving privileges, which is prohibiting him from obtaining employment.This letter was not an appeal of the September 12, 2017 denial of his hereinabove described application as it was not addressed to the Department of Motor Vehicles Appeals Board.On November 20, 2017, the Driver Improvement Bureau denied the aforesaid request for consideration of unusual, extenuating and compelling circumstances based on the fact that the Petitioner herein had driven while his license was revoked.On December 16, 2017, the Petitioner herein appealed the Driver Improvement Bureau’s November 20, 2017 decision.The New York State Department of Motor Vehicles Administrative Appeals Board Decision of Appeal, dated January 30, 2018, affirmed the original September 12, 2017 denial of Gary S. Kerpen’s application for a driver’s license and the November 20, 2017 denial of the request for consideration of unusual, extenuating and compelling circumstances.The said decision in pertinent part found:After being revoked for following too closely and driving at a speed not reasonable and prudent in connection with a fatal accident, appellant submitted an application for a driver’s license, which was denied on September 12, 2017 pursuant to Vehicle and Traffic Law §510 and Commissioner’s Regulations Part 136 (15 NYCRR). Vehicle and Traffic Law Vehicle and Traffic Law §510(5) and (6) provide that once revoked, a driver’s license may be restored only by direction of the Commissioner of Motor Vehicles and that where revocation is mandatory, no new license shall be issued except in the discretion of the Commissioner…* * *Given appellant’s driving record, the denial of appellant’s application for a driver’s license had a rational basis, was authorized by Vehicle and Traffic Law §510 and Part 136 of the Commissioner’s Regulations, and did not constitute an abuse of discretion.The Department may consider unusual, extenuating or compelling circumstances, which the driver may present for review (15 NYCRR 136.4[e]). Appellant submitted information concerning appellant’s circumstances and the Driver Improvement Bureau notified appellant that after considering the information, the denial of appellant’s application for a driver’s license could not be withdrawn. Considering appellant’s undisputed driving record, the Department’s responsibility to protect the general public, and the overall goal of highway safety, the determination not to withdraw the denial was a reasonable exercise of discretion and had a rational basis. (See, 15 NYCRR 136.1).Appellant failed to appeal the initial denial of his application for relicensure in a timely matter, as required by law. Vehicle and Traffic Law and Commissioner’s Regulations provide that no appeal shall be considered if filed more than sixty days after the date of the Department’s decision letter. Appellant’s appeal was not filed within 60 days of the September 12, 2017 denial letter. Therefore, pursuant to law, any arguments pertaining to the September 12, 2017 denial have been waived and will not be considered.Effective September 25, 2012, 22 NYCRR Section 136.4(d)(1)(i) provides:(d) An application for a driver’s license may be denied if the applicant is currently revoked pursuant to:(1) a determination of a department of Motor Vehicles’ Administrative Law judge following a hearing:(i) to investigate a fatal accidentFurther, 22 NYCRR Section 136.4(f) states in pertinent part:While it is the Commissioner’s general policy to deny any application based on those elements cited in subdivision (a), (b), (c) and (d) of this section, the commissioner shall not be foreclosed from consideration of unusual, extenuating or compelling circumstances which may be presented for review, which form a valid basis to deviate from the general policy, as set forth above, in the exercise of the discretionary authority granted under section 510 of the Vehicle and Traffic Law.Based upon the hereinabove set forth findings of fact, the Court makes the following conclusions of law:With respect to the Petitioner’s omnibus claims that the September 25, 2012 Part 136 Regulations are unconstitutional in that they, inter alia, violate due process, illegally conflict with the Vehicle and Traffic Law, violate the Ex Post Facto clause of the United States Constitution and violate the separation of powers doctrine, Notice of Petition page 1 (a) and (b) and page 2 “more specifically” (a), (b), (c), (d), (e), (f), (g) (h) and (i), all of which have been judicially determined to be without merit, see Guido v. Melton, 107 Misc 2d 660, 661 (Sup. Ct. Albany County 1981) Matter of Brown v. New York State Dept. of Motor Vehicles, 44 Misc 3d 182, 190 (Sup. Ct. Nassau County 2014); Matter of Matsen v. New York State Department of Motor Vehicles, 134 AD3d 1283 (Third Dept 2015); Matter of Acevedo v. New York State Department of Motor Vehicles, 29 NY3d 202 (2017); Matter of Suce v. Taylor, 37 AD3d 886, 887 (3d Dept 2007); Kellogg v. Travis, 100 NY2d 407 (2003); Matter of Carney v. New York State Department of Motor Vehicles, 43 Misc 3d 674, 679 (Sup. Ct. Albany County 2014); Matter of Barnes v. Tofany, 27 NY2d 74, 78 (1970); Matter of Allen v. New York State Department of Motor Vehicles, 45 Misc 3d 475 (Sup. Ct. Albany County); Schulz v. State, 84 NY2d 231, 241 (1994); and Hope v. Perales (83 NY2d 563, 574 (1994).Therefore, Petition’s prayed for declaratory judgment relief pursuant to CPLR Section 3001 is denied in all respects.With respect to the Petitioner’s prayer for alternative relief, CPLR Section 7803 in pertinent part provides:The only questions that may be raised in a proceeding under this article are:* * *(3) Whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion as to the measure or mode of penalty or discipline imposed …Initially, this Court must observe that the August 13, 2015 New York State Department of Motor Vehicles’ order and the September 12, 2017 decision of the New York State Department of Motor Vehicles Driver Improvement Bureau cannot be an issue in this CPLR Article 78 proceeding in that any challenge to either or both is time-barred by the CPLR Section 217(1) four month period within which to commence such a proceeding.Therefore, this Court’s consideration of the CPLR Section 7803(3) issues presented herein is limited to the January 30, 2018 New York State Department of Motor Vehicles Administrative Appeals Board Decision of Appeal.Based upon this Court’s hereinabove set forth determinations, the Court’s attention to the January 30, 2018 New York State Department of Motor Vehicles Administrative Appeals Board Decision of Appeal is solely limited to the penultimate paragraph of the said decision which found and determined:The Department may consider unusual, extenuating or compelling circumstances, which the driver may present for review (15 NYCRR 136.4[e]) [sic]. Appellant submitted information concerning appellant’s circumstances, and the Driver Improvement Bureau notified appellant that after considering the information, the denial of appellant’s application for a driver’s license could not be withdrawn. Considering appellant’s undisputed driving record, the Department’s responsibility to protect the general public, and the overall goal of highway safety, the determination not to withdraw the denial was a reasonable excuse of discretion and had a rational basis. (See 15 NYCRR 136.1).15 NYCRR 136.4(f) states in pertinent part:While it is the Commissioner’s general policy to deny an application based on those elements cited in subdivisions (a), (b) (c) and (d) of this section, the commissioner shall not be foreclosed from consideration of unusual, extenuating or compelling circumstances which may be presented for review, which form a valid basis to deviate from the general policy, as set forth above, in the exercise of the discretionary authority granted under Section 510 of the Vehicle and Traffic Law.With respect to the prayed for CPLR Article 78 relief, this Court’s review of the hereinabove described determination of the New York State Department of Motor Vehicles Administrative Appeals Board Decision of Appeal is whether the said determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion (see Halperin v. City of New Rochelle, 24 AD3d 768 [2d Dept 2005]). An arbitrary determination is one that is without a sound basis in reason and is made without regard to the facts (see Hollander v. Suffolk County Dept. of Social Services, 140 AD3d 1064 [2d Dept 2016]). Capricious action is established when an administrative agency on identical facts decides differently (see Lefrak Forest Hills Corp. v. Galvin, 40 AD2d 211 [2d Dept 1972]). Furthermore, the Court is empowered to determination which Administrative Agency’s action was arbitrary and capricious as a matter of law such that there was an abuse of discretion (see McDougall v. Scoppetta, et al., 76 AD3d 338 [2d Dept 2010]).Based on all of the foregoing, this Court finds and determines that the hereinabove described determination of the New York State Department of Motor Vehicles Administrative Appeals Board Decision of Appeal was not made in violation of lawful procedure, affected by an error of law or decided differently on identical facts in a prior matter.However, this Court is unable to determine the reasonableness of the Agency’s exercise of its discretionary authority in denying the application of the Petitioner herein for reconsideration of his license application based upon unusual, extenuating or compelling circumstances.Accordingly, this said application for reconsideration, pursuant to 15 NYCRR 136.4(f), is herewith remanded to New York State Department of Motor Vehicles Administrative Appeals Board for further consideration and determination thereof.Settle Judgment on Notice.
