SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1121.1 

CA 14-02175 

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND VALENTINO, JJ. 

 

IN THE MATTER OF PATRICK J. UNDERWOOD, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

BARBARA J. FIALA, NEW YORK STATE COMMISSIONER 

OF MOTOR VEHICLES, RESPONDENT-APPELLANT, 

AND ERIC T. SCHNEIDERMAN, NEW YORK STATE ATTORNEY 

GENERAL, RESPONDENT.

(APPEAL NO. 2.) 

 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JEFFREY W. LANG OF

COUNSEL), FOR RESPONDENT-APPELLANT. 

WILLIAM G. PIXLEY, PITTSFORD, FOR PETITIONER-RESPONDENT.

Appeal from an amended judgment (denominated amended order and

judgment) of the Supreme Court, Monroe County (Ann Marie Taddeo, J.),

entered June 3, 2014 in a proceeding pursuant to CPLR article 78. The

amended judgment, insofar as appealed from, annulled a determination

denying petitioner’s application for relicensing and directed

respondent Barbara J. Fiala, New York State Commissioner of Motor

Vehicles, to restore to petitioner full driving privileges without

restrictions. 

It is hereby ORDERED that the amended judgment insofar as

appealed from is unanimously reversed on the law without costs and the

petition is dismissed in its entirety. 

Memorandum: In this CPLR article 78 proceeding, respondent

Barbara J. Fiala, New York State Commissioner of Motor Vehicles

(Commissioner), appeals from an amended judgment that, insofar as

appealed from, annulled a determination denying petitioner’s

application for relicensing and directed the Commissioner to restore

to petitioner full driving privileges without restrictions. We agree

with the Commissioner that Supreme Court erred in granting the

petition. 

Petitioner’s license to drive a motor vehicle was revoked in

January 2012 as a result of a conviction of driving while ability

impaired (see Vehicle and Traffic Law § 1193). In June 2012,

petitioner applied for a new license. Pending the adoption of

emergency regulations, the Commissioner held petitioner’s application

in abeyance, along with the applications of other persons with three
-2- 1121.1 

CA 14-02175 

or more alcohol- or drug-related driving offenses (see Matter of Kenny

v Fiala, 127 AD3d 1359, 1359). In January 2013, after the emergency

regulations became effective, petitioner’s application was denied on

the ground that petitioner had “five or more alcohol- or drug-related

driving convictions or incidents” (15 NYCRR 136.5 [b] [1]). Following

an administrative appeal, petitioner commenced this proceeding,

contending in pertinent part that the Commissioner unlawfully applied

the emergency regulations retroactively to his relicensing

application. The court agreed with that contention, granted the

petition, and directed the Commissioner to restore to petitioner full

driving privileges without restrictions.

Contrary to the court’s determination, there is no merit to

petitioner’s contention that the Commissioner erred in retroactively

applying the amended regulations to his application (see Matter of

Acevedo v New York State Dept. of Motor Veh., 132 AD3d 112, ___ [Aug.

6, 2015]; Kenny, 127 AD3d at 1359). “[P]etitioner’s driver’s license

is not generally viewed as a vested right, but merely a personal

privilege subject to reasonable restrictions and revocation by [the

Commissioner] under her discretionary powers . . . Thus, [the

Commissioner] remained free to apply her most recent regulations when

exercising her discretion in deciding whether to grant or deny

petitioner’s application for relicensing. This is especially so in

light of the rational, seven-month moratorium placed on all similarlysituated applicants for relicensing— i.e., persons with three or more

alcohol-related driving convictions” (Matter of Scism v Fiala, 122

AD3d 1197, 1198; see Matter of Klink v Fiala, 129 AD3d 1685, 1686). 

Finally, petitioner failed to exhaust his administrative remedies

with respect to his remaining contention, and we therefore do not have

the power to review it (see generally Matter of Nelson v Coughlin, 188

AD2d 1071, 1071, appeal dismissed 81 NY2d 834). 

Entered: November 20, 2015 Frances E. Cafarell

Clerk of the Court