Opinion
February 3, 1989
Appeal from the Supreme Court, Onondaga County, Stone, J.
Present — Dillon, P.J., Doerr, Boomer, Green and Pine, JJ.
Determination unanimously modified on the law and as modified confirmed without costs, in accordance with the following memorandum: We modify the determination of the Commissioner by annulling that portion which found that petitioner had violated Vehicle and Traffic Law § 398-c by operating a repair shop without being registered, and we direct that the Commissioner remit the fine imposed for that violation. Although petitioner, a car dealer, on one occasion demanded payment for repair work that the purchaser contended should have been performed without charge under warranty, he finally released the car without charge and there was no showing that he ever received compensation for repair work or that he was "for compensation * * * engaged in the business of repairing or diagnosing motor vehicle malfunctions" (Vehicle and Traffic Law § 398-b; see, Matter of Tobey v Melton, 74 A.D.2d 708, 709).