SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

597 

TP 11-02206 

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, AND LINDLEY, JJ.

 

 

IN THE MATTER OF G&S MANAGEMENT, INC. 

AND GUIDO SCIRRI, PETITIONERS, 

V MEMORANDUM AND ORDER

BARBARA J. FIALA AND NEW YORK STATE DEPARTMENT 

OF MOTOR VEHICLES, RESPONDENTS. 

 

GARY D. BOREK, LLC, BUFFALO (GARY D. BOREK OF COUNSEL), FOR

PETITIONERS. 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARLENE O. TUCZINSKI

OF COUNSEL), FOR RESPONDENTS. 

 

Proceeding pursuant to CPLR article 78 (transferred to the

Appellate Division of the Supreme Court in the Fourth Judicial

Department by order of the Supreme Court, Erie County [Tracey A.

Bannister, J.], entered September 16, 2011) to review a determination

of respondents. The determination, inter alia, suspended petitioners’

used car dealer registration and imposed monetary penalties. 

It is hereby ORDERED that the determination is unanimously

confirmed without costs and the petition is dismissed. 

Memorandum: Petitioners, operators of a used car dealership,

commenced this CPLR article 78 proceeding seeking to annul the

determination that they violated Vehicle and Traffic Law §§ 417 and

415 (9) (d), as well as 15 NYCRR 78.11 (a) (15) (i), as made

applicable by 15 NYCRR 78.11 (b). We reject petitioners’ contention

that the determination is not supported by substantial evidence (see

generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45

NY2d 176, 181-182). At the vehicle safety hearing before the

Administrative Law Judge (ALJ), respondents presented the testimony of

an investigator and the complainant concerning the major rear seal oil

leak and serious brake and steering defects in the vehicle at the time

it was delivered to the complainant. Thus, the vehicle “was in no

condition to render satisfactory service upon the public highway” as

required by Vehicle and Traffic Law § 417, and petitioners’ inspection

of the vehicle was patently inadequate to detect those obvious

problems (Matter of Port City Ford-Mercury v Adduci, 145 AD2d 941). 

The finding of the ALJ with respect to the violation of that statute

therefore is supported by substantial evidence and has a rational

basis (see id.). Further, petitioners conceded that the complainant

was overcharged for the cost of vehicle registration fees, and the
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TP 11-02206 

complainant testified at the hearing that petitioners did not provide

her with a copy of the Retail Certificate of Sale, i.e., form MV-50,

at the time of sale and delivery. We therefore conclude that the

determination that they violated Vehicle and Traffic Law § 415 (9) (d)

and 15 NYCRR 78.11 (a) (15) (i) is supported by substantial evidence. 

We reject petitioners’ further contention that, because the

vehicle safety hearing was not commenced within the 12 months of the

filing of the complaint, dismissal of the charges is required (see 15

NYCRR 127.2 [b] [1]). The time period contained in the regulation is

directory rather than mandatory, and a violation thereof does not

require dismissal of the charges or annulment of the determination

(see Matter of Dickinson v Daines, 15 NY3d 571, 575-576). 

We have considered petitioners’ remaining contentions and

conclude that they are without merit.

Entered: April 27, 2012 Frances E. Cafarell

Clerk of the Court