Opinion
2012-04-27
In the Matter of G & S MANAGEMENT, INC., and Guido Scirri, Petitioners, v. Barbara J. FIALA and New York State Department of Motor Vehicles, Respondents.
Gary D. Borek, LLC, Buffalo (Gary D. Borek of Counsel), for Petitioners. Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of Counsel), for Respondents.
Gary D. Borek, LLC, Buffalo (Gary D. Borek of Counsel), for Petitioners. Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of Counsel), for Respondents.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, AND LINDLEY, JJ.
MEMORANDUM:
Petitioners, operators of a used car dealership, commenced this CPLR article 78 proceeding seeking to annul the determination that they violated Vehicle and Traffic Law §§ 417 and 415 (9)(d), as well as 15 NYCRR 78.11(a)(15)(i), as made applicable by 15 NYCRR 78.11(b). We reject petitioners' contention that the determination is not supported by substantial evidence ( see generally 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 181–182, 408 N.Y.S.2d 54, 379 N.E.2d 1183). At the vehicle safety hearing before the Administrative Law Judge (ALJ), respondents presented the testimony of an investigator and the complainant concerning the major rear seal oil leak and serious brake and steering defects in the vehicle at the time it was delivered to the complainant. Thus, the vehicle “was in no condition to render satisfactory service upon the public highway” as required by Vehicle and Traffic Law § 417, and petitioners' inspection of the vehicle was patently inadequate to detect those obvious problems ( Matter of Port City Ford–Mercury v. Adduci, 145 A.D.2d 941, 536 N.Y.S.2d 311). The finding of the ALJ with respect to the violation of that statute therefore is supported by substantial evidence and has a rational basis ( see id.). Further, petitioners conceded that the complainant was overcharged for the cost of vehicle registration fees, and the complainant testified at the hearing that petitioners did not provide her with a copy of the Retail Certificate of Sale, i.e., form MV–50, at the time of sale and delivery. We therefore conclude that the determination that they violated Vehicle and Traffic Law § 415(9)(d) and 15 NYCRR 78.11(a)(15)(i) is supported by substantial evidence.
We reject petitioners' further contention that, because the vehicle safety hearing was not commenced within the 12 months of the filing of the complaint, dismissal of the charges is required ( see 15 NYCRR 127.2[b] [1] ). The time period contained in the regulation is directory rather than mandatory, and a violation thereof does not require dismissal of the charges or annulment of the determination ( see Matter of Dickinson v. Daines, 15 N.Y.3d 571, 575–576, 915 N.Y.S.2d 200, 940 N.E.2d 905).
We have considered petitioners' remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.