State of New York                                              MEMORANDUM
Court of Appeals                                          This memorandum is uncorrected and subject to
                                                        revision before publication in the New York Reports.




 No. 32
 In the Matter of Wayne Seon,
         Respondent,
      v.
 New York State Department of
 Motor Vehicles, et al.,
         Appellants.




 Linda Fang, for appellants.
 Vanessa M. Corchia, for respondent.




 MEMORANDUM:

        The judgment of the Appellate Division should be reversed, with costs, the petition

 denied, and the determination of the New York State Department of Motor Vehicles

 reinstated.

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       In November 2014, a New York City Transit bus driven by petitioner struck the

victim, an 88-year-old pedestrian. At the time of the accident, the victim was in a marked

crosswalk with the right of way, and petitioner was making a right turn. The bus ran “over

[the victim’s] legs . . . with the front passenger’s side tire,” pinning him under the bus. The

victim was transported to the hospital, where he died less than four weeks later.

       A summons was issued to petitioner alleging that he caused serious physical injury

to a pedestrian while failing to exercise due care (see VTL § 1146 [c]). The Administrative

Law Judge found that the charge was established by clear and convincing evidence. The

DMV’s Traffic Violations Bureau Appeal Board affirmed, and petitioner’s license was

suspended for six months (see VTL § 510 [2] [b] [xiv]). Petitioner commenced this CPLR

article 78 proceeding challenging the DMV’s determination. A divided Appellate Division

granted the petition, annulled and vacated the agency determination, and reinstated

petitioner’s license (159 AD3d 607 [1st Dept 2018]). The DMV respondents appealed. We

now reverse.

       The evidence at the administrative hearing included an investigative report from the

accident-reconstruction specialist who investigated the incident, a report from a police

officer who responded to the scene, and a statement provided by petitioner after the

accident. The accident-reconstruction specialist also testified at the hearing, reiterating his

report’s conclusion concerning the victim’s injuries.         On this record, the agency’s

determination – that clear and convincing evidence demonstrated that petitioner caused

serious physical injury while failing to exercise due care in violation of VTL § 1146 (c) –


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is supported by substantial evidence (see Matter of McKenzie v Fisher, 39 NY2d 103, 103-

105 [1976]; see also 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d

176, 182 [1978]; Siegel, NY Prac § 560 at 1075 [6th ed 2018]).

         Petitioner’s remaining arguments are either unpreserved or without merit.

*    *       *    *     *    *     *    *     *    *     *    *     *    *     *     *   *

Judgment reversed, with costs, petition denied and determination of the New York State
Department of Motor Vehicles reinstated, in a memorandum. Chief Judge DiFiore and
Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.


Decided June 25, 2020

.




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