State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 9, 2015 519204 

________________________________

In the Matter of THOMAS J.

KENNY IV,

Appellant,

v MEMORANDUM AND ORDER

BARBARA J. FIALA, as 

 Commissioner of Motor

Vehicles,

Respondent.

________________________________

Calendar Date: February 9, 2015

Before: Lahtinen, J.P., McCarthy, Egan Jr. and Clark, JJ.

__________

James Kleinbaum, Chatham, for appellant.

Eric T. Schneiderman, Attorney General, Albany (Robert M.

Goldfarb of counsel), for respondent.

__________

Clark, J.

Appeal from a judgment of the Supreme Court (Gilpatric,

J.), entered October 25, 2013 in Albany County, which dismissed

petitioner's application, in a combined proceeding pursuant to

CPLR article 78 and action for declaratory judgment, to, among

other things, review a determination of respondent denying

petitioner's application for a driver's license.

Petitioner, who has committed a total of 16 driving

offenses since 2000, three of which were alcohol-related, had his

driver's license revoked in 2010. In July 2012, petitioner

applied for relicensing. Pending adoption of emergency

regulations addressing the relicensing of recidivist drivers (see
-2- 519204 

NY Reg March 13, 2013 at 46), respondent held petitioner's

application – along with the applications from other persons with

multiple alcohol- and drug-related driving violations – in

abeyance. In December 2012, after the emergency regulations

became effective, respondent denied petitioner's application for

relicensure citing the newly amended 15 NYCRR 136.5 (a) (3) and

(b) (3) (i). The denial was thereafter affirmed by the

Administrative Appeals Board. Petitioner then commenced this

hybrid CPLR article 78 proceeding and action for declaratory

judgment, seeking an order granting him a driver's license and a

declaration that certain regulations are unconstitutional as

applied to him or, in the alternative, remittal to respondent for

reconsideration under the regulations existing at the time of his

application. Supreme Court dismissed petitioner's application

without a hearing, and petitioner now appeals. We affirm. 

Initially, two recent decisions from this Court effectively

dispose of petitioner's primary arguments on appeal (see Matter

of Scism v Fiala, 122 AD3d 1197 [2014]; Matter of Berroa v Fiala,

122 AD3d 1209 [2014]). In particular, petitioner's contention

that respondent impermissibly and retroactively applied the

amended regulations to his application is without merit (see

Matter of Scism v Fiala, 122 AD3d at 1198 [respondent "remained

free to apply her most recent regulations when exercising her

discretion in deciding whether to grant or deny petitioner's

application"]; Matter of Berroa v Fiala, 122 AD3d at 1210). 

Impermissible retroactive application of a statute generally

occurs when a vested right is impaired or a past transaction is

altered by such application (see Matter of Allied Grocers Coop. v

Tax Appeals Trib., 162 AD2d 791, 792 [1990]). As this Court has

emphasized, however, "[a] driver's license is not generally

viewed as a vested right, but merely a personal privilege subject

to reasonable restrictions" (Matter of Scism v Fiala, 122 AD3d at

1198; see Vehicle and Traffic Law §§ 510 [2] [c]; 1192 [2];

Matter of Lap v Axelrod, 95 AD2d 457, 459 [1983], lv denied 61

NY2d 603 [1984]). Therefore, respondent was within her authority

to apply the amended emergency regulations to petitioner's

application. 

Additionally, although an extensive delay in petitioner's

application made in bad faith may be annulled as arbitrary (see
-3- 519204 

Matter of Alscot Inv. Corp. v Incorporated Vil. of Rockville

Ctr., 64 NY2d 921, 922 [1985]; Matter of Pokoik v Silsdorf, 40

NY2d 769, 773 [1976]), there is no indication of such bad faith

here. Importantly, respondent's delayed action applied to all

similarly-situated applicants over the seven-month moratorium

(see Matter of Scism v Fiala, 122 AD3d at 1198). Not only was

this action within respondent's broad discretion with regard to

relicensure (see Vehicle and Traffic Law §§ 510 [5]; 1192 [2]; 15

NYCRR 136.1 [a]; see also Matter of Dahlgren v New York State

Dept. of Motor Vehs., 124 AD3d 1400, 1401 [2015]), but it was

also taken in the furtherance of public safety (see NY Reg, March

13, 2013 at 46; Matter of Scism v Fiala, 122 AD3d at 1198). 

Accordingly, respondent's decision to delay consideration of

petitioner's application does not indicate a bad faith motive

requiring reversal, and we therefore affirm the judgment of

Supreme Court. 

Finally, to the extent that the arguments submitted before

Supreme Court were purely legal, that court properly dismissed

the petition without a hearing (see Matter of Akshar v Mills, 249

AD2d 786, 787-788 [1998], lv dismissed 92 NY2d 962 [1998]). 

Petitioner's remaining contentions have been considered and found

to be without merit.

Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court