Corbett v. Schroeder

2023 NY Slip Op 01450

IN THE MATTER OF DAVID KEVIN D. CORBETT, PETITIONER-APPELLANT, v. MARK J.F. SCHROEDER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, RESPONDENT-RESPONDENT.

No. 1030 CA 22-01094

Supreme Court of New York, Fourth Department

March 17, 2023

THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR PETITIONER-APPELLANT.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF COUNSEL), FOR RESPONDENT-RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, BANNISTER, MONTOUR, AND OGDEN, JJ.

Appeal from a judgment (denominated order) of the Supreme Court Monroe County (John J. Ark, J.), entered February 10, 2022 in a proceeding pursuant to CPLR article 78. The judgment denied the petition.

It is hereby ORDERED that the judgment so appealed from is unanimously vacated, the determination is 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 refusal to submit to a chemical test following his arrest for driving while intoxicated. As a preliminary matter, we conclude that Supreme Court should have transferred the proceeding to this Court. The petition raises a question of substantial evidence, and the remaining points made by petitioner are not objections that could have terminated the proceeding within the meaning of CPLR 7804 (g). We therefore vacate the judgment, and we treat the proceeding as if it had been properly transferred and review petitioner's contentions de novo (see Matter of Elderwood at Cheektowaga v Zucker, 188 A.D.3d 1578, 1579 [4th Dept 2020]; Matter of Hope Day Care, LLC v New York State Off. of Children & Family Servs., 162 A.D.3d 1639, 1640 [4th Dept 2018], lv denied 32 N.Y.3d 905 [2018]).

We conclude that the determination is supported by substantial evidence (see Matter of Thompson v New York State Dept of Motor Vehs., 170 A.D.3d 1657, 1657-1658 [4th Dept 2020]). The arresting officer's testimony at the hearing established that the officer lawfully stopped the vehicle driven by petitioner based on a reasonable suspicion that petitioner was committing the crime of driving while intoxicated (see People v White, 27 A.D.3d 1181 1182 [4th Dept 2006]). The officer testified that he arrived at an establishment after responding to a 911 call about a patron who was "causing trouble." There, the officer spoke with petitioner, and the officer detected an odor of alcohol emanating from petitioner and observed that petitioner had "glassy eyes," spoke with a "slow pace of speech," and swayed while he was standing. The officer shortly thereafter learned from the establishment's security guard that petitioner had...