                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 9, 2015                     519204
________________________________

In the Matter of THOMAS J.
   KENNY IV,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

BARBARA J. FIALA, as
   Commissioner of Motor
   Vehicles,
                    Respondent.
________________________________


Calendar Date:   February 9, 2015

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

                             __________


     James Kleinbaum, Chatham, for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Robert M.
Goldfarb of counsel), for respondent.

                             __________


Clark, J.

      Appeal from a judgment of the Supreme Court (Gilpatric,
J.), entered October 25, 2013 in Albany County, which dismissed
petitioner's application, in a combined proceeding pursuant to
CPLR article 78 and action for declaratory judgment, to, among
other things, review a determination of respondent denying
petitioner's application for a driver's license.

      Petitioner, who has committed a total of 16 driving
offenses since 2000, three of which were alcohol-related, had his
driver's license revoked in 2010. In July 2012, petitioner
applied for relicensing. Pending adoption of emergency
regulations addressing the relicensing of recidivist drivers (see
                              -2-                519204

NY Reg March 13, 2013 at 46), respondent held petitioner's
application – along with the applications from other persons with
multiple alcohol- and drug-related driving violations – in
abeyance. In December 2012, after the emergency regulations
became effective, respondent denied petitioner's application for
relicensure citing the newly amended 15 NYCRR 136.5 (a) (3) and
(b) (3) (i). The denial was thereafter affirmed by the
Administrative Appeals Board. Petitioner then commenced this
hybrid CPLR article 78 proceeding and action for declaratory
judgment, seeking an order granting him a driver's license and a
declaration that certain regulations are unconstitutional as
applied to him or, in the alternative, remittal to respondent for
reconsideration under the regulations existing at the time of his
application. Supreme Court dismissed petitioner's application
without a hearing, and petitioner now appeals. We affirm.

      Initially, two recent decisions from this Court effectively
dispose of petitioner's primary arguments on appeal (see Matter
of Scism v Fiala, 122 AD3d 1197 [2014]; Matter of Berroa v Fiala,
122 AD3d 1209 [2014]). In particular, petitioner's contention
that respondent impermissibly and retroactively applied the
amended regulations to his application is without merit (see
Matter of Scism v Fiala, 122 AD3d at 1198 [respondent "remained
free to apply her most recent regulations when exercising her
discretion in deciding whether to grant or deny petitioner's
application"]; Matter of Berroa v Fiala, 122 AD3d at 1210).
Impermissible retroactive application of a statute generally
occurs when a vested right is impaired or a past transaction is
altered by such application (see Matter of Allied Grocers Coop. v
Tax Appeals Trib., 162 AD2d 791, 792 [1990]). As this Court has
emphasized, however, "[a] driver's license is not generally
viewed as a vested right, but merely a personal privilege subject
to reasonable restrictions" (Matter of Scism v Fiala, 122 AD3d at
1198; see Vehicle and Traffic Law §§ 510 [2] [c]; 1192 [2];
Matter of Lap v Axelrod, 95 AD2d 457, 459 [1983], lv denied 61
NY2d 603 [1984]). Therefore, respondent was within her authority
to apply the amended emergency regulations to petitioner's
application.

      Additionally, although an extensive delay in petitioner's
application made in bad faith may be annulled as arbitrary (see
                              -3-                  519204

Matter of Alscot Inv. Corp. v Incorporated Vil. of Rockville
Ctr., 64 NY2d 921, 922 [1985]; Matter of Pokoik v Silsdorf, 40
NY2d 769, 773 [1976]), there is no indication of such bad faith
here. Importantly, respondent's delayed action applied to all
similarly-situated applicants over the seven-month moratorium
(see Matter of Scism v Fiala, 122 AD3d at 1198). Not only was
this action within respondent's broad discretion with regard to
relicensure (see Vehicle and Traffic Law §§ 510 [5]; 1192 [2]; 15
NYCRR 136.1 [a]; see also Matter of Dahlgren v New York State
Dept. of Motor Vehs., 124 AD3d 1400, 1401 [2015]), but it was
also taken in the furtherance of public safety (see NY Reg, March
13, 2013 at 46; Matter of Scism v Fiala, 122 AD3d at 1198).
Accordingly, respondent's decision to delay consideration of
petitioner's application does not indicate a bad faith motive
requiring reversal, and we therefore affirm the judgment of
Supreme Court.

      Finally, to the extent that the arguments submitted before
Supreme Court were purely legal, that court properly dismissed
the petition without a hearing (see Matter of Akshar v Mills, 249
AD2d 786, 787-788 [1998], lv dismissed 92 NY2d 962 [1998]).
Petitioner's remaining contentions have been considered and found
to be without merit.

     Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
