State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 15, 2016 522397 

________________________________

In the Matter of MARIANNE

MERKEL,

Appellant,

v MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF

MOTOR VEHICLES et al.,

Respondents.

________________________________

Calendar Date: October 21, 2016

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

__________

Paula Schwartz Frome, Garden City, for appellant.

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

Lang of counsel), for respondents.

__________

Lynch, J.

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

entered May 27, 2015 in Albany County, which dismissed

petitioner's application, in a proceeding pursuant to CPLR

article 78, to review a determination of respondents denying

petitioner's application for a driver's license.

In 2012, petitioner's driver's license was revoked after

she was convicted of her fifth alcohol-related driving offense. 

In 2014, petitioner's application for a new license was denied by

the Driver Improvement Bureau (hereinafter Bureau) of respondent

Department of Motor Vehicles pursuant to 15 NYCRR 136.5 (b) (1). 

The Bureau also denied petitioner's request for a hardship

exception under 15 NYCRR 136.5 (d), and that determination was
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affirmed by respondent Department of Motor Vehicles Appeals Board

(hereinafter the Board). Thereafter, petitioner commenced this

CPLR article 78 proceeding challenging the Board's determination

as arbitrary and capricious for failing to duly take into account

her history and extenuating circumstances. Supreme Court

dismissed the petition and this appeal ensued.

Initially, petitioner did not preserve a challenge to the

regulation at issue, 15 NYCRR 136.5 (see Matter of Nicholson v

Appeals Bd. of Admin. Adjudication Bur., 135 AD3d 1224, 1225

[2016]). Under this regulation, a lifetime license revocation

applies to a person with five or more alcohol-related driving

convictions or incidents during his or her lifetime (see 15 NYCRR

136.5 [a] [1]; [b] [1]). Pertinent here, the Commissioner of

Motor Vehicles retains the discretion to grant a new license to

any person affected by the regulation who demonstrates "unusual,

extenuating and compelling circumstances . . . [that] may form a

valid basis to deviate from the general policy" (15 NYCRR 136.5

[d]; see Matter of Nicholson v Appeals Bd. of Admin. Adjudication

Bur., 135 AD3d at 1225). In her hardship affidavit, petitioner

acknowledged that she was convicted of alcohol-related offenses

in 1986, 1989 and 1992, and two in 2012. She explained that

after the 1992 conviction, she participated in alcohol

rehabilitation, married in 1998 and had a child, obtained a

certificate of relief from disabilities in 2000 and was licensed

as a registered nurse in 2001, working in that capacity until

2012. Petitioner maintained a 20-year period of sobriety, but,

due to a series of significant stressful events in her personal

life in which she separated from her husband and was the victim

of two violent crimes, she relapsed and was arrested for driving

while intoxicated in May 2012 and again in June 2012. At this

point, she increased alcohol and psychological treatment,

completing a Bridge Back to Life program in 2013, while

continuing counseling at the Central Nassau Guidance Center. She

was granted another certificate of relief from disabilities in

2013. Pursuant to a consent order in October 2013, petitioner

was authorized to continue to practice as a registered nurse by

the Department of Education, subject to quarterly monitoring. 

She seeks a driver's license for purposes of securing employment

and to attend to the needs of her family, documenting the history

recited above (cf. Matter of Nicholson v Appeals Bd. of Admin.
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Adjudication Bur., 135 AD3d at 1225). 

The difficulty in reviewing this petition is that the

record does not include the Bureau's March 25, 2014 letter

determination. All we have in this record is the Board's

explanation that the Bureau "determined that the denial of

[petitioner's] application for a driver's license could not be

withdrawn" (emphasis added) – a conclusion the Board determined

"had a rational basis." The flaw here is that the underscored

phrase runs counter to the discretionary standard set forth in 15

NYCRR 136.5 (d). On this record, it would appear that the Bureau

misconstrued its authority under the regulation and failed to

exercise any discretion in reviewing the application. This error

is not cured by the Board's characterization of the Bureau's

decision as "rational." As such, the petition is granted to the

extent of annulling respondents' determination and remitting the

matter to respondents for further review of petitioner's

application.

McCarthy, J.P., Egan Jr., Clark and Aarons, JJ., concur.

ORDERED that the judgment is reversed, on the law, without

costs, determination annulled and matter remitted to respondents

for further proceedings not inconsistent with this Court's

determination.

ENTER:

Robert D. Mayberger

Clerk of the Court