Opinion
2013-03-22
In the Matter of Donna KING, Petitioner, v. Honorable John Andrew KAY, York, Respondent.
Steven M. Politi, Esq., Central Islip, for Petitioner. Eric T. Schneiderman, Attorney General of the State of New York, Patricia M. Hingerton of counsel, Hauppauge, for Respondent.
Steven M. Politi, Esq., Central Islip, for Petitioner. Eric T. Schneiderman, Attorney General of the State of New York, Patricia M. Hingerton of counsel, Hauppauge, for Respondent.
JOSEPH A. SANTORELLI, J.
Petitioner commenced the instant article 78 proceeding by Order to Show Cause dated February 8, 2013, seeking, inter alia: an order pursuant to Civil Practice Law and Rules (CPLR) §§ 7803(3) and/or 7803(4) vacating respondent's determination, pursuant to Vehicle and Traffic Law § 510(3–a), to temporarily suspend petitioner's driver's license; or, in the alternative, an order pursuant to CPLR 7803(1) granting a Pringle—like hearing to contest the allegations which formed the basis of the temporary suspension; and/or an order remanding the matter to The Suffolk County District Court for a full hearing on the merits. Respondent, Honorable John Andrew Kay, Judge of the Suffolk County District Court, opposes the petition and argues the suspension of petitioner's license is proper pending the prosecution of petitioner for violations of Vehicle and Traffic Law §§ 1192(2–a) and 1192(3), pursuant to Vehicle and Traffic Law § 510(3–a); and that petitioner's due process rights have been accorded.
On November 18, 2012, petitioner was arrested for violating Vehicle and Traffic Law § 1192(2–a), aggravated driving while intoxicated per se, and Vehicle and Traffic Law § 1192(3), driving while intoxicated. Petitioner was arraigned in Suffolk County District Court part D–11 on the charges on November 19, 2012 before Honorable Paul Hensley, at which time a plea of not guilty was entered by petitioner and her license to drive was suspended pursuant to Vehicle and Traffic Law § 1193(2)(e)(7) (the prompt suspension law). On November 26, 2012, petitioner appeared in Suffolk County District Court part D–41 before respondent. At this appearance, respondent found petitioner's “operation [of a motor vehicle] is a clear and present danger to the residents of New York State”, and then temporarily suspended petitioner's license pursuant to Vehicle and Traffic Law § 510(3–a).
Preliminarily, this Court finds respondent's determination to temporarily suspend petitioner's license on November 26, 2012, was purely administrative in nature. Suspensions and revocations pursuant to Vehicle and Traffic Law § 510 are deemed by the Legislature to be administrative acts reviewable by the Supreme Court as such ( seeVehicle and Traffic Law § 510[7]; see alsoVehicle and Traffic Law § 510[1]; Del Zio v. Chinman, 54 Misc.2d 697, 699, 283 N.Y.S.2d 333 [Sup.Ct., Nassau County 1967] [“No greater powers are conferred upon a judge of a court with respect to revocation or suspension of licenses by [Vehicle and Traffic Law § ] 510, than is conferred upon the Commissioner of Motor Vehicles”] ). Further, it is well settled that pre-conviction license suspension procedures are civil administrative proceedings ( see Matter of Barnes v. Tofany, 27 N.Y.2d 74, 77–78, 313 N.Y.S.2d 690, 261 N.E.2d 617 [1970];Pringle v. Wolfe, 88 N.Y.2d 426, 435, 646 N.Y.S.2d 82, 668 N.E.2d 1376 [1996] ).
However, an administrative determination is quasi-judicial if it is the result of a trial-type hearing ( see generally ABN AMRO Bank, N.V. v. MBIA Inc., 17 N.Y.3d 208, 226, 928 N.Y.S.2d 647, 952 N.E.2d 463 [2011];Jason B. v. Novello, 12 N.Y.3d 107, 113, 876 N.Y.S.2d 682, 904 N.E.2d 818 [2009];Hecht v. Monaghan, 307 N.Y. 461, 470, 121 N.E.2d 421 [1954] ). A trial-type hearing is one in which the “party whose rights are being determined [is] fully apprised of the claims of the opposing party and ... [is] given the opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal” ( Hecht, 307 N.Y. at 470, 121 N.E.2d 421;see also Scherbyn v. Wayne–Finger Lakes Bd. of Co-op. Educ. Services, 77 N.Y.2d 753, 757, 570 N.Y.S.2d 474, 573 N.E.2d 562 [1991];Halperin v. City of New Rochelle, 24 A.D.3d 768, 770, 809 N.Y.S.2d 98 [2d Dept.2005] ). Conversely, a determination remains purely administrative when it involves an exercise of judgment or discretion in the absence of a trial-type hearing ( see Halperin, 24 A.D.3d at 769–70, 809 N.Y.S.2d 98;Scherbyn, 77 N.Y.2d at 757–58, 570 N.Y.S.2d 474, 573 N.E.2d 562). A purely administrative determination need not have accorded the affected parties a full-fledged adversarial hearing or confined itself to evidence placed on the record ( see 125 Bar Corp. v. State Liquor Auth., 24 N.Y.2d 174, 180, 299 N.Y.S.2d 194, 247 N.E.2d 157 [1969];Fink v. Cole, 1 N.Y.2d 48, 52–53, 150 N.Y.S.2d 175, 133 N.E.2d 691 [1956] ).
Here, respondent's determination to temporarily suspend petitioner's license pursuant to Vehicle and Traffic Law § 510(3–a) prior to petitioner's conviction for the underlying Vehicle and Traffic Law § 1192 charges was an administrative determination ( seeVehicle and Traffic Law § 510[7]; Tofany, 27 N.Y.2d at 77–78, 313 N.Y.S.2d 690, 261 N.E.2d 617). The temporary suspension was not quasi-judicial as petitioner was not provided an opportunity to “cross-examine witnesses, to inspect documents,[or] to offer evidence in explanation or rebuttal” at the time of, or before, the temporary suspension of her license ( Hecht, 307 N.Y. at 470, 121 N.E.2d 421;see also Scherbyn, 77 N.Y.2d at 757–58, 570 N.Y.S.2d 474, 573 N.E.2d 562). Respondent simply reviewed the information at hand and made the determination to temporarily suspend petitioner's license.
CPLR article 78 relief from an administrative determination is available pursuant to CPLR 7803(3) (mandamus to review) and/or CPLR 7803(1) (mandamus to compel) ( see Scherbyn, 77 N.Y.2d at 757–58, 570 N.Y.S.2d 474, 573 N.E.2d 562;Halperin, 24 A.D.3d at 770, 809 N.Y.S.2d 98;Schmitt v. Skovira, 53 A.D.3d 918, 920, 862 N.Y.S.2d 167 [3d Dept.2008];CPLR 7801[1] ).
Relief from a quasi-judicial administrative hearing is available pursuant to CPLR 7803(2) (prohibition) and/or CPLR 7803(4) (certiorari). ( See Scherbyn, 77 N.Y.2d at 757–58, 570 N.Y.S.2d 474, 573 N.E.2d 562 [“Mandamus to review resembles certiorari, except hat in a certiorari proceeding a quasi-judicial hearing normally is required and the reviewing court has the benefit of a full record”]; Matter of Dondi v. Jones, 40 N.Y.2d 8, 12–13, 386 N.Y.S.2d 4, 351 N.E.2d 650 [1976] [“Prohibition lies to prevent or control judicial or quasi-judicial action only, as opposed to legislative, executive or ministerial action”].)
Relief Pursuant to CPLR 7803(3)
An article 78 proceeding pursuant to CPLR 7803(3) asks “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” ( id.; see Scherbyn, 77 N.Y.2d 753, 757–758, 570 N.Y.S.2d 474, 573 N.E.2d 562;Bros. v. Pilgrim Psychiatric Ctr. of New York State Office of Mental Health, 131 A.D.2d 756, 757, 517 N.Y.S.2d 55 [2d Dept.1987] ). Under this standard “the Court must determine ‘the rationality of the administrative act’ ” ( Poster v. Strough, 299 A.D.2d 127, 141, 752 N.Y.S.2d 326 [2d Dept.2002], quoting 125 Bar Corp., 24 N.Y.2d 174, 299 N.Y.S.2d 194, 247 N.E.2d 157;see also Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974];Fink, 1 N.Y.2d at 52–53, 150 N.Y.S.2d 175, 133 N.E.2d 691). The determination “may be annulled only upon a clear showing that ‘[respondent] acted solely upon grounds which as a matter of law may not control [his] discretion.’ ” ( Poster, 299 A.D.2d 127, 141, 752 N.Y.S.2d 326, quoting Larkin Co. v. Schwab, 242 N.Y. 330, 336, 151 N.E. 637 [1926] ).
Vehicle and Traffic Law § 510(3–a)
This Court holds that authority to temporarily suspend driving privileges without notice pursuant to Vehicle and Traffic Law § 510(3–a) first requires a determination that suspension is permissive pursuant to Vehicle and Traffic Law § 510(3). Respondent suspended petitioner's license pursuant to Vehicle and Traffic Law § 510(3–a), which states in relevant part:
“Where revocation or suspension is permissive, the holder, unless he shall waive such right, shall have an opportunity to be heard except where such revocation or suspension is based solely on a court conviction or convictions or on a court commitment to an institution under the jurisdiction of the department of mental hygiene. A license may, however, be temporarily suspended without notice, pending any prosecution, investigation or hearing.” ( Id.)
Vehicle and Traffic Law § 510(3), titled “Permissive suspensions and revocations”, enumerates circumstances under which a judge, the Commissioner of Motor Vehicles, and the Superintendent of Police, have the discretion to suspend or revoke a driver's license ( seeVehicle and Traffic Law § 510[3], [1] ).
“When presented with a question of statutory interpretation, our primary consideration is to ascertain and give effect to the intention of the Legislature” ( DaimlerChrysler Corp. v. Spitzer, 7 N.Y.3d 653, 660, 827 N.Y.S.2d 88, 860 N.E.2d 705 [2006] [internal quotation marks and citation omitted] ). “The statutory text is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning” ( id.; see also Majewski v. Broadalbin–Perth Cent. School Dist., 91 N.Y.2d 577, 583, 673 N.Y.S.2d 966, 696 N.E.2d 978 [1998];Matter of State of New York v. Ford Motor Co., 74 N.Y.2d 495, 500, 549 N.Y.S.2d 368, 548 N.E.2d 906 [1989] ). Where “the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency” ( Matter of Gruber, 89 N.Y.2d 225, 231, 652 N.Y.S.2d 589, 674 N.E.2d 1354 [1996] [internal quotation and citation omitted]; see DaimlerChrysler Corp., 7 N.Y.3d at 660, 827 N.Y.S.2d 88, 860 N.E.2d 705). Such are the circumstances of the matter currently before the court.
Further, we must afford “the statute a sensible and practical over-all construction, which is consistent with and furthers its scheme and purpose and which harmonizes all its interlocking provisions” ( Matter of Long v. Adirondack Park Agency, 76 N.Y.2d 416, 420, 559 N.Y.S.2d 941, 559 N.E.2d 635 [1990] ). Moreover, courts should construe a statute to avoid unreasonable consequences and avoid rendering any of its language superfluous. ( See Long v. State of New York, 7 N.Y.3d 269, 273, 819 N.Y.S.2d 679, 852 N.E.2d 1150 [2006];People v. Finley, 10 N.Y.3d 647, 655, 862 N.Y.S.2d 1, 891 N.E.2d 1165 [2008];Matter of Branford House v. Michetti, 81 N.Y.2d 681, 688, 603 N.Y.S.2d 290, 623 N.E.2d 11 [1993].)
This Court acknowledges that interpretations of Vehicle and Traffic Law § 510(3–a) have varied. Some courts have found that suspension must first be found permissive under the criteria enumerated in Vehicle and Traffic Law § 510(3) before temporarily suspending a license pursuant to Vehicle and Traffic Law § 510(3–a) ( see Lemyre v. Lippman, 57 Misc.2d 775, 777, 293 N.Y.S.2d 582 [Sup.Ct., Nassau County 1968];Lashway v. Hults, 36 Misc.2d 1012, 1015, 234 N.Y.S.2d 47 [Sup.Ct., Albany County 1962];Del Zio v. Chinman, 54 Misc.2d at 698, 283 N.Y.S.2d 333).
Other courts, similar to the District Court in this instant case, have found Vehicle and Traffic Law § 510(3–a) provides judges authority to suspend a license pending “any prosecution” ( Vehicle and Traffic Law § 510[3–a]; see Robertson v. Tomson, 60 Misc.2d 275, 276, 303 N.Y.S.2d 115 [Sup.Ct., Nassau County 1969];Ryan v. Smith, 139 Misc.2d 151, 153, 527 N.Y.S.2d 174 [Sup.Ct., Schenectady County 1988];People v. Forgette, 141 Misc.2d 1009, 1012, 535 N.Y.S.2d 924 [Crim. Ct., New York County 1988] ).
Prior to 1990, Vehicle and Traffic Law § 510(3–a) existed in its current form, except without heading (“Opportunity to be heard and temporary suspensions”), as an unmarked paragraph at the end of Vehicle and Traffic Law § 510(3). ( See 1990 N.Y. Sess. Law Serv. 173 §§ 52, 53.)
Buckson v. Harris, 145 A.D.2d 883, 536 N.Y.S.2d 219 [3d Dept.1988], relied on heavily by respondent, dealt with bail conditions on a felony indictment and relied on cases decided prior to the Legislature's 1988 recodification of the Vehicle and Traffic Law, discussed below.
Courts in the latter group, finding that Vehicle and Traffic Law § 510(3–a) by itself grants authority to suspend licenses pending “any prosecution,” have done so reading the second sentence of Vehicle and Traffic Law § 510(3–a) independent of the first ( seeVehicle and Traffic Law § 510[3–a]; Ryan, 139 Misc.2d at 153, 527 N.Y.S.2d 174;Robertson, 60 Misc.2d at 276, 303 N.Y.S.2d 115;Forgette, 141 Misc.2d at 1012, 535 N.Y.S.2d 924). However, in this Court's view, the statutory language does not support such a reading.
The second sentence of Vehicle and Traffic Law § 510(3–a) states, in relevant part: “A license may, however, be temporarily suspended without notice, pending any prosecution, investigation or hearing” (Vehicle and Traffic Law § 510[3–a] [emphasis added] ). However', when placed between commas, is an adverb which means “nevertheless ” or “in spite of that” (Webster's New World Dictionary [4th ed. 2002]; see also Strunk, William, Jr.; White, E.B., The Elements of Style 48–49 [4th ed. 2000] ). Thus, reading the first sentence with the second sentence is required in order to determine what a temporary suspension “without notice, pending any prosecution, investigation, or hearing” is in spite of. (Vehicle and Traffic Law § 510 [3–a].)
The first sentence of Vehicle and Traffic Law § 510(3–a) states, in relevant part: “ Where revocation or suspension is permissive, the holder shall have an opportunity to be heard” (Vehicle and Traffic Law § 510[3–a] [emphasis added] ). Accordingly, a license, in spite of an opportunity to be heard, may be temporarily suspended without notice pending any prosecution, investigation, or hearing ( id.). Given that the opportunity to be heard is only available where suspension is permissive, the Legislature's choice to use the word however' evinces intent to have “where revocation or suspension is permissive” be a precursor to authority conferred by the first and second sentence of the paragraph. ( Id.)
Further, reading the second sentence of Vehicle and Traffic Law § 510(3–a) independently confers near limitless power to the judges, the Superintendent of Police, and the Commissioner of Motor Vehicles to temporarily suspend a license without notice, pending any prosecution, investigation, or hearing (Vehicle and Traffic Law § 510[3–a] [emphasis added] ). “Due process requires that a civil statute contain a reasonable degree of certainty so that individuals of ordinary intelligence are not forced to guess at the meaning of statutory terms” ( Pringle, 88 N.Y.2d at 435, 646 N.Y.S.2d 82, 668 N.E.2d 1376 [internal quotation omitted] ). Because of the absence of limitations under this reading of the statute, courts adopting it have imposed some limits to sustain constitutionality as applied ( see Lemyre, 57 Misc.2d at 776, 293 N.Y.S.2d 582;Forgette, 141 Misc.2d at 1012, 535 N.Y.S.2d 924). However, judicially creating limitations to meet a presumption of constitutionality are unnecessary as “a sensible and practical over-all construction [of the statute] which is consistent with and furthers its scheme and purpose and which harmonizes all its interlocking provisions” evinces the limitations the Legislature intended to impose ( Matter of Long, 76 N.Y.2d at 420, 559 N.Y.S.2d 941, 559 N.E.2d 635).
Of further note, suspensions pursuant to Vehicle and Traffic Law § 510(3) may occur only upon a showing of good cause based upon competent testimony at a hearing. ( See Application of Kafka, 272 A.D. 364, 368, 71 N.Y.S.2d 179 [1st Dept.1947].)Vehicle and Traffic Law § 510(3–a) provides the authority to temporarily suspensions under permissive circumstances. ( SeeVehicle and Traffic Law § 510[3–a].)
Moreover, reading Vehicle and Traffic Law § 510(3–a) in a manner which provides authority to suspend a license for violation of Vehicle and Traffic Law § 1192 alone is inconsistent with the Legislature's intent. In 1988, the Legislature recodified the Vehicle and Traffic Law, the Criminal Procedure Law, and the Correction Law, in relation to alcohol-related offenses and procedures ( see 1988 N.Y. Sess. Law Serv. 47). The Legislature made the following finding:
“The legislature hereby finds that there are a myriad of alcohol and drug-related provisions spread throughout the vehicle and traffic law. This creates confusion and uncertainty for legal practitioners, law enforcement agencies, courts and the public. The legislature thus finds that these provisions should be recodified into a single article of the vehicle and traffic law.” ( Id. § 1)
The recodification included a comprehensive restructuring and re-enactment of Vehicle and Traffic Law article 31 titled “Alcohol and Drug–Related Offenses and Procedures Applicable Thereto” ( see 1988 N.Y. Sess. Law Serv. 47 § 18; Vehicle and Traffic Law art. 31). The recodified article 31 included, and still includes, provisions that specifically address temporary suspensions pursuant to driving while intoxicated prosecutions: Vehicle and Traffic Law § 1193(2)(e)(1) which mandates temporary suspension when a driver is charged with an § 1192 violation a) after being convicted of a prior § 1192 violation in the preceding 5 years, or b) is charged with Vehicular Assault or Vehicular Homicide in connection with the violation; and § 1194(2)(b) which mandates temporary suspension upon a driver's refusal to submit to a chemical test. ( SeeVehicle and Traffic Law §§ 1193[2][e][1], 1194[2][b][3].)
The Legislature, in its legislative act to place all alcohol and drug related provisions into a single article, also amended Vehicle and Traffic Law § 510 ( see 1988 N.Y. Sess. Law Serv. 47 §§ 5–9). Provisions that addressed alcohol and drug-related violations in the statute were removed, and language excepting alcohol and drug-related violations was added ( see id.; see alsoVehicle and Traffic Law § 510[3][j] ). Significantly, Vehicle and Traffic Law § 510(3–a) (which in 1988 was an unmarked paragraph at the end of Vehicle and Traffic Law § 510(3)) remained un-amended. If the Legislature intended Vehicle and Traffic Law § 510(3–a) to govern violations of § 1192, it would have been addressed in the recodification. Instead, the Legislature enacted Vehicle and Traffic Law §§ 1193(2)(e)(1) and 1194(2)(b) to address temporary suspensions for violations of § 1192.
The Legislature further addressed Vehicle and Traffic Law § 1192 violations in 1994, enacting Vehicle and Traffic Law § 1193(2)(e)(7), the prompt suspension law, mandating temporary suspension where there is a chemical test reading exceeding .08% blood alcohol content ( seeVehicle and Traffic Law § 1193[2][e][7]; Pringle, 88 N.Y.2d at 435, 646 N.Y.S.2d 82, 668 N.E.2d 1376). Consistent with the intent of the 1988 recodification, the prompt suspension law was placed in Vehicle and Traffic Law article 31, not Vehicle and Traffic Law § 510 ( seeVehicle and Traffic Law § 1193[2][e][7]; Vehicle and Traffic Law § 510). Further, Vehicle and Traffic Law § 510(3)(a),
amended to exclude driving while intoxicated violations as a permissive basis for suspension in 1933,
Not to be confused with § 510(3–a).
and left un-amended in the 1988 recodification, reflects the Legislature's intent to have statute's other than Vehicle and Traffic Law §§ 510(3) and (3–a) govern suspension for driving while intoxicated violations. ( SeeVehicle and Traffic Law § 510 [3] [“[L]icenses may be suspended or revoked: (a) for any violation of the provisions of this chapter, except section eleven hundred ninety-two.”] [emphasis added]; People v. Allison, 16 N.Y.S.2d 571, 572–73 [Rochester City Ct., 1939].)
.Vehicle and Traffic Law § 510(3) was formerly Vehicle and Traffic Law § 70(3).
Application
Respondent suspended petitioner's license pursuant to Vehicle and Traffic Law § 510(3–a) without a finding that suspension was permissive pursuant to Vehicle and Traffic Law § 510(3). It is well settled that judicial review of an administrative determination is limited to the grounds invoked by the body ( see Scherbyn, 77 N.Y.2d at 758, 570 N.Y.S.2d 474, 573 N.E.2d 562, citing Aronsky v. Bd. of Educ., Cmty. Sch. Dist. No. 22 of City of New York, 75 N.Y.2d 997, 1000, 557 N.Y.S.2d 267, 556 N.E.2d 1074 [1990]amended sub nom. Aronsky v. Bd. of Educ., 78 N.Y.2d 1057, 576 N.Y.S.2d 212, 582 N.E.2d 595 [1991] ).
“A reviewing court, in dealing with a[n administrative] determination must judge the propriety of such action solely by the grounds invoked by the [body]. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis” ( Montauk Imp., Inc. v. Proccacino, 41 N.Y.2d 913, 913, 394 N.Y.S.2d 619, 363 N.E.2d 344 [1977], quoting Sec. & Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 [1947];see also Scherbyn, 77 N.Y.2d at 758, 570 N.Y.S.2d 474, 573 N.E.2d 562;Parkmed Associates v. New York State Tax Comm'n, 60 N.Y.2d 935, 936, 471 N.Y.S.2d 44, 459 N.E.2d 153 [1983];Ridge Transp. Sys., Inc. v. City of New York, 95 A.D.3d 1217, 1220, 945 N.Y.S.2d 130 [2d Dept. 2012] ).
Vehicle and Traffic Law § 510(3–a) does not authorize a temporary suspension without a finding that suspension is permissive pursuant to Vehicle and Traffic Law § 510(3). Respondent made no such finding. Further, petitioner is charged solely with violations of Vehicle and Traffic Law § 1192, which without further findings, subjects petitioner to suspension under article 31, not Vehicle and Traffic Law § 510. In fact, at the time of respondent's November 26, 2012 determination, petitioner's license had already been temporarily suspended pursuant to Vehicle and Traffic Law § 1193(2)(e)(7).
The propriety of the respondent's administrative determination must be judged solely on the grounds invoked by respondent. This Court finds no basis in the law to support the temporary suspension of Petitioner's license pursuant to Vehicle and Traffic Law § 510(3–a) on this record.
Accordingly, it is
ORDERED, that respondent's November 26, 2012 determination is annulled;
Further, it is
ORDERED, that further relief is denied as moot.
The foregoing constitutes the Order of this Court.