        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

811
CA 14-01656
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF MARTIN T. KLINK,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

BARBARA J. FIALA, COMMISSIONER, NEW YORK
STATE DEPARTMENT OF MOTOR VEHICLES,
RESPONDENT-APPELLANT.


ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JEFFREY W. LANG OF
COUNSEL), FOR RESPONDENT-APPELLANT.

CHARLES D. STEINMAN, ESQ., PLLC, ROCHESTER (CHARLES D. STEINMAN OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Monroe County (Ann Marie Taddeo, J.), entered November 26, 2013 in a
CPLR article 78 proceeding. The judgment granted the petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs and the petition is
dismissed.

     Memorandum: Following the revocation of his driver’s license
based on his conviction of aggravated driving while intoxicated,
petitioner applied to the Department of Motor Vehicles for a new
license in May 2012. By that time, however, respondent was holding in
abeyance the relicensing applications of all applicants, including
petitioner, with three or more alcohol- or drug-related driving
convictions during a period of emergency rulemaking pending
finalization of new recidivism regulations. In December 2012,
respondent denied petitioner’s application under the new regulations
(see 15 NYCRR 136.5 [a] [3]; [b] [3]). That determination was
affirmed on petitioner’s administrative appeal, and petitioner
commenced this CPLR article 78 proceeding contending, inter alia, that
respondent’s decision to hold his application and apply the new
regulations retroactively was contrary to law and arbitrary and
capricious. Supreme Court annulled the determination and directed
respondent to render a decision on petitioner’s application for a
driver’s license based upon regulations that were in effect in May
2012. As petitioner correctly concedes on this appeal by respondent,
the court erred in granting the petition.

     “Impermissible retroactive application of a statute generally
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                                                         CA 14-01656

occurs when a vested right is impaired or a past transaction is
altered by such application” (Matter of Kenny v Fiala, 127 AD3d 1359,
1359; see Matter of Scism v Fiala, 122 AD3d 1197, 1198). “[H]owever,
‘[a] driver’s license is not generally viewed as a vested right, but
[it is] merely a personal privilege subject to reasonable
restrictions’ ” (Kenny, 127 AD3d at 1360, quoting Scism, 122 AD3d at
1198). Here, “respondent 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 similarly-situated applicants for relicensing—i.e., persons
with three or more alcohol-related driving convictions” (Scism, 122
AD3d at 1198). We thus conclude that “the delay in processing
petitioner’s application was neither unlawful nor an abuse of
discretion . . . , and that [respondent] properly applied the ‘25 year
look back period’ ” pursuant to the new regulations (Matter of
Dahlgren v New York State Dept. of Motor Veh., 124 AD3d 1400, 1402;
see 15 NYCRR 136.5 [a] [3]).




Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
