Opinion
12-10-2015
In the Matter of J. Paul NOONAN, Appellant, v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES et al., Respondents.
Gerstenzang, O'Hern, Sills & Gerstenzang, Albany (Eric H. Sills of counsel), for appellant. Eric T. Schneiderman, Attorney General, Albany (Jeffrey W. Lang of counsel), for respondents.
Gerstenzang, O'Hern, Sills & Gerstenzang, Albany (Eric H. Sills of counsel), for appellant.
Eric T. Schneiderman, Attorney General, Albany (Jeffrey W. Lang of counsel), for respondents.
Before: McCARTHY, J.P., ROSE, LYNCH and DEVINE, JJ.
Opinion
ROSE, J.
Appeal from an order and judgment of the Supreme Court (Ceresia Jr., J.), entered May 23, 2014 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, among other things, granted respondents' motion for summary judgment dismissing the petition/complaint.
Petitioner was twice convicted of driving while intoxicated in 2007, thereby accruing his fourth and fifth alcohol-related driving offenses since 1985. As a result, he was sentenced to four years in prison and his driver's license was revoked for a minimum period of one year (see Vehicle and Traffic Law § 1193 [2][b][3] ). When petitioner applied for a new license, respondent Department of Motor Vehicles (hereinafter DMV) ultimately denied his application pursuant to 15 NYCRR 136.5(b)(1), part of newly adopted emergency regulations concerning the review of applications for relicensing by persons with multiple alcohol- or drug-related driving offenses (see 15 NYCRR part 136). After DMV's decision was affirmed upon petitioner's administrative appeal, he commenced this combined CPLR article 78 proceeding and action for declaratory judgment against DMV and respondent Commissioner of Motor Vehicles, seeking, among other things, an order granting him a new driver's license and declaring that the emergency regulations are unconstitutional because the Commissioner promulgated them without or in excess of her authority. Respondents joined issue and moved for summary judgment dismissing petitioner's challenge to the regulations, and Supreme Court granted the motion. Petitioner appeals.
Initially, we agree with Supreme Court that petitioner fails to claim an injury in fact flowing from any of the regulatory provisions he challenges other than 15 NYCRR 136.5(b)(1), which respondents cite as authority for denying his relicensing application (see New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211, 778 N.Y.S.2d 123, 810 N.E.2d 405 [2004]; Matter of Gym Door Repairs, Inc. v. New York City Dept. of Educ., 112 A.D.3d 1198, 1199, 977 N.Y.S.2d 478 [2013] ). Thus, with the exception of his specific arguments regarding 15 NYCRR 136.5(b)(1), petitioner's challenges to the validity of other provisions of 15 NYCRR part 136 are nonjusticiable (see American Ins. Assn. v. Chu, 64 N.Y.2d 379, 382, 487 N.Y.S.2d 311, 476 N.E.2d 637 [1985], appeal dismissed and cert. denied 474 U.S. 803, 106 S.Ct. 36, 88 L.Ed.2d 29 [1985]; Police Benevolent Assn. of N.Y. State Troopers, Inc. v. New York State Div. of State Police, 40 A.D.3d 1350, 1352, 838 N.Y.S.2d 199 [2007], appeal dismissed and lv. denied 9 N.Y.3d 942, 844 N.Y.S.2d 783, 876 N.E.2d 511 [2007] ).
Turning to petitioner's justiciable claims, inasmuch as his arguments in favor of invalidating 15 NYCRR 136.5(b)(1) are substantially similar to those advanced in Matter of Carney v. New York State Dept. of Motor Vehs., 133 A.D.3d 1150, ––– N.Y.S.3d –––– (2015), and identical to those found in Matter of Joy v. New York State Dept. of Motor Vehs., 133 A.D.3d 1167, –––N.Y.S.3d –––– (2015), our holdings affirming Supreme Court in those prior cases are dispositive here.
McCARTHY, J.P. and DEVINE, J., concur.
LYNCH, J. (concurring).
In view of the majority decisions of this Court in Matter of Carney v. New York State Dept. of Motor Vehs., 133 A.D.3d 1150, ––– N.Y.S.3d –––– (2015) and Matter of Joy v. New York State Dept. of Motor Vehs., 133 A.D.3d 1167, ––– N.Y.S.3d –––– (2015), I concur.
ORDERED that the order and judgment is affirmed, without costs.