                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 21, 2016                   520816
________________________________

In the Matter of WALTER
   NICHOLSON,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

APPEALS BOARD OF ADMINISTRATIVE
   ADJUDICATION BUREAU et al.,
                    Respondents.
________________________________


Calendar Date:   November 19, 2015

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

                             __________


     Kevin P. Sheerin, Mineola, for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Jeffrey W.
Lang of counsel), for respondents.

                             __________


Lahtinen, J.P.

      Appeal from a judgment of the Supreme Court (Ceresia Jr.,
J.), entered June 4, 2014 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.

      Between 1987 and 2007, petitioner had five alcohol-related
driving convictions – two for driving while intoxicated and three
for driving while ability impaired – as well as over a dozen
other traffic violations. As a result, his driver's license was
revoked in 2008. In 2013, he applied for relicensing. The
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Driver Improvement Bureau of respondent Department of Motor
Vehicles denied petitioner's application, and that decision was
upheld by respondent Appeals Board of Administrative Adjudication
Bureau. This CPLR article 78 proceeding ensued. Supreme Court
dismissed the petition and petitioner now appeals.

      The regulations of respondent Commissioner of Motor
Vehicles, which are not challenged here (cf. Matter of Acevedo v
New York State Dept. of Motor Vehs., 132 AD3d 112 [2015]), set
forth a policy of denying relicensing where the applicant has
five or more alcohol-related driving convictions (see 15 NYCRR
136.5 [b] [1]). There is an exception in that "the Commissioner
shall not be foreclosed from consideration of unusual,
extenuating and compelling circumstances that may be presented
for review and which may form a valid basis to deviate from the
general policy" (15 NYCRR 136.5 [d]). "[O]ur review is limited
to whether [the] determination was arbitrary and capricious,
irrational, affected by an error of law or an abuse of
discretion" (Matter of Scism v Fiala, 122 AD3d 1197, 1197, n 1
[2014]; see CPLR 7803 [3]; Matter of Naranjo v Commissioner of
Dept. of Motor Vehs., State of N.Y., 116 AD3d 859, 861 [2014]).

      Although the initial denial informed petitioner that he
could request an exception based on unusual, extenuating or
compelling circumstances by submitting such information to the
Driver Improvement Bureau, he instead opted for an appeal to the
Appeals Board. Petitioner submitted with his appeal a brief
statement in which he indicated that he has undergone successful
treatment for his alcohol problem and he continues to receive
support through Alcoholics Anonymous. He further related that he
is the single parent of a 12 year old. In this proceeding, he
added that he is also the caregiver for an elderly parent. We
note a lack of documentation or detail regarding his purported
rehabilitation or other current circumstances. In any event,
despite some ostensibly sympathetic facts, we cannot conclude
that the denial of his application was arbitrary, irrational or
an abuse of discretion in light of his dangerous driving history.
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McCarthy, Egan Jr., Lynch and Devine, JJ., concur.



ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
