                          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probation and his driver's license was revoked for a minimum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.
                        -3-                  522033

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
