Opinion
September 21, 1984
Appeal from the Supreme Court, Erie County, Fudeman, J.
Present — Hancock, Jr., J.P., Callahan, Denman, Boomer and O'Donnell, JJ.
Determination unanimously confirmed and petition dismissed, without costs. Memorandum: Although there was a substantial delay in holding an administrative hearing on the charges against petitioner, such delay did not operate to oust the agency of jurisdiction. Petitioner failed to establish that any evidence was lost or that any witnesses became unavailable as a result of the delay and thus has not made a showing of substantial prejudice (see Matter of Sarkisian Bros. v State Div. of Human Rights, 48 N.Y.2d 816; Matter of Geary v Commissioner of Motor Vehicles, 92 A.D.2d 38, aff'd 59 N.Y.2d 950; Matter of Axelrod [Walia], 103 A.D.2d 1007). Petitioner's argument that the complaint against him was not timely filed is misplaced. Although a complaint is required to be filed within 90 days after completion of repairs, the time did not commence to run until petitioner released the vehicle since the violations were not apparent until that time. The Commissioner's determination is supported by substantial evidence and the suspension and fine imposed on petitioner is not "shocking to one's sense of fairness" ( Matter of Pell v Board of Educ., 34 N.Y.2d 222, 234; see, also, Matter of Doino v Laehy, 100 A.D.2d 744).