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Holman v. Schroeder

Appellate Division of the Supreme Court of the State of New York
Mar 16, 2021
192 A.D.3d 507 (N.Y. App. Div. 2021)

Opinion

13337 Index No. 158604/19 Case No. 2020-01263

03-16-2021

In the Matter of Viviane T. HOLMAN, Petitioner, v. Mark J.F. SCHROEDER, etc., et al., Respondents.

Jonathan Rosenberg, PLLC, Brooklyn ( Jonathan Rosenberg of counsel), for appellant. Letitia James, Attorney General, New York ( Eric R. Haren of counsel), for respondents.


Jonathan Rosenberg, PLLC, Brooklyn ( Jonathan Rosenberg of counsel), for appellant.

Letitia James, Attorney General, New York ( Eric R. Haren of counsel), for respondents.

Renwick, J.P., Kapnick, Oing, Moulton, JJ.

Determination of respondent New York State Department of Motor Vehicles, dated August 5, 2019, which, after a hearing, found that petitioner violated Vehicle and Traffic Law § 1225–c(2)(a) by operating a motor vehicle while using a cell phone to engage in a call while the vehicle was in motion, and imposed a fine of $50 and five points, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Carol R. Edmead, J.], entered November 14, 2019), dismissed, without costs.

Respondent's determination that petitioner violated Vehicle and Traffic Law § 1225–c(2)(a) is supported by substantial evidence ( see generally 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180–181, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ). The officer's testimony that he observed petitioner holding a mobile phone with her right hand to her right ear while her mouth was moving and while she was operating the motor vehicle gave rise to the presumption that petitioner was engaged in a call in violation of the statute, and petitioner failed to rebut this presumption ( see Vehicle and Traffic Law § 1225–c[2][b] ; Matter of Snitow v. New York State Dept. of Motor Vehs., 121 A.D.3d 1008, 1009, 996 N.Y.S.2d 55 [2d Dept. 2014] ). Although she submitted evidence that she owned a hands-free device and testified that she was using it at the time she was stopped, this evidence presented credibility issues, and there is no basis in the record for us to reject the factfinder's determination that the officer's testimony was credible.

Petitioner's remaining contention is unpreserved and in any event unavailing.


Summaries of

Holman v. Schroeder

Appellate Division of the Supreme Court of the State of New York
Mar 16, 2021
192 A.D.3d 507 (N.Y. App. Div. 2021)
Case details for

Holman v. Schroeder

Case Details

Full title:In the Matter of Viviane T. Holman, Petitioner, v. Mark J.F. Schroeder…

Court:Appellate Division of the Supreme Court of the State of New York

Date published: Mar 16, 2021

Citations

192 A.D.3d 507 (N.Y. App. Div. 2021)
2021 N.Y. Slip Op. 1509
140 N.Y.S.3d 410