State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 30, 2016 522033 

________________________________

In the Matter of MARK E.

FORREST,

Appellant,

v MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF 

MOTOR VEHICLES et al.,

Respondents.

________________________________

Calendar Date: June 1, 2016

Before: Peters, P.J., Garry, Rose, Mulvey and Aarons, JJ.

__________

John J. Gilmour, Hamburg, for appellant.

Eric T. Schneiderman, Attorney General, Albany (Jeffrey W.

Lang of counsel), for respondents.

__________

Mulvey, J.

Appeal from a judgment of the Supreme Court (Hard, J.),

entered January 22, 2015 in Albany County, which dismissed

petitioner's application, in a proceeding pursuant to CPLR

article 78, to, among other things, review a determination of

respondent Department of Motor Vehicles denying petitioner's

application for a driver's license.

Petitioner was convicted of driving while intoxicated in

2010 – his fifth conviction for an alcohol-related driving

offense. As a result, he was sentenced to, among other things,

probation and his driver's license was revoked for a minimum

period of one year (see Vehicle and Traffic Law § 1193 [2] [b]

[3]). When the one-year minimum period expired, pursuant to the
-2- 522033 

conditions of his probation, petitioner obtained permission from

the sentencing court to apply for restoration of his license and,

thereafter, applied for a new license. Respondent Department of

Motor Vehicles (hereinafter DMV) held the application in abeyance

pending the adoption of emergency regulations by respondent

Commissioner of Motor Vehicles concerning the review of

applications for relicensing by persons with multiple alcohol- or

drug-related driving offenses (see 15 NYCRR part 136). DMV

subsequently denied petitioner's application and, upon

petitioner's administrative appeal, the denial was affirmed. 

Petitioner then commenced this CPLR article 78 proceeding against

DMV and the Commissioner seeking, among other things, an order

granting him a new license and declaring that the emergency

regulations are unconstitutional because, among other things,

they violate the separation of powers doctrine. Supreme Court

dismissed the petition, and this appeal ensued.

We affirm. To the extent that petitioner's arguments in

favor of invalidating 15 NYCRR 136.5 (b) (1) are substantially

similar to those advanced in Matter of Matsen v New York State

Dept. of Motor Vehs. (134 AD3d 1283, 1284 [2015]), Matter of

Noonan v New York State Dept. of Motor Vehs. (134 AD3d 1281,

1281-1282 [2015]) and Matter of Joy v New York State Dept. of

Motor Vehs. (133 AD3d 1167, 1168-1169 [2015]), and are identical

to those determined in Matter of Carney v New York State Dept. of

Motor Vehs. (133 AD3d 1150, 1151-1152 [2015]) and Matter of

Acevedo v New York State Dept. of Motor Vehs. (132 AD3d 112, 118-

121 [2015]), we find that our holdings affirming Supreme Court in

those prior cases are dispositive here.1

Peters, P.J., Garry, Rose and Aarons, JJ., concur.

1 Appeals in Matter of Matsen v New York State Dept. of

Motor Vehs. (supra), Matter of Carney v New York State Dept. of

Motor Vehs. (supra) and Matter of Acevedo v New York State Dept.

of Motor Vehs. (supra) are currently pending before the Court of

Appeals.
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ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court