         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1289
TP 12-00264
PRESENT: SCUDDER, P.J., CENTRA, VALENTINO, WHALEN, AND MARTOCHE, JJ.


IN THE MATTER OF CHARLES E. WATSON, INDIVIDUALLY
AND DOING BUSINESS AS C.E.W. MOTORS, PETITIONER,

                    V                              MEMORANDUM AND ORDER

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


LEONARD A. ROSNER, ROCHESTER, FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by judgment (denominated order) of the Supreme Court,
Monroe County [William P. Polito, J.], entered January 18, 2012) to
review the determinations of respondent. The determinations revoked
petitioner’s inspection station license and his certified inspector
license.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs, the determinations are confirmed
and the petition is dismissed in its entirety.

     Memorandum: Respondent charged petitioner, individually and
doing business as C.E.W. Motors, with violating Vehicle and Traffic
Law § 303 (e) (3) and 15 NYCRR 79.17 (b) (1) and 79.24 (i), concerning
an inspection petitioner performed on a “concealed identity vehicle.”
Petitioner appeared before the Administrative Law Judge (ALJ) without
the benefit of counsel and, following a hearing, the ALJ found
petitioner guilty of all three charges. Finding that “[petitioner’s]
testimony exhibited the most complete and thorough disregard of the
State laws and the Commissioner’s regulations when performing New York
State inspections that [he had] hear[d] in . . . 19 years,” the ALJ
revoked the inspector’s card issued to petitioner as well as C.E.W.
Motors’ inspection station license.

     Petitioner hired an attorney and filed administrative appeals
challenging the ALJ’s determinations. In each of the administrative
appeals, petitioner sought review of “both the findings and the
revocation” of his inspector’s card and license. He contended that
vacatur was justified because he proceeded without the benefit of
counsel, there was insufficient evidence supporting the
                                 -2-                          1289
                                                         TP 12-00264

“conviction(s),” and the penalty imposed was disproportionately
severe. Petitioner did not file a transcript of the administrative
hearing with his administrative appeals, although he had received
notifications informing him that it was his obligation to do so.

     The Administrative Appeals Board (Board) affirmed the
determinations, noting that petitioner’s administrative appeals raised
“issues of fact [that] would require transcript review.” With respect
to petitioner’s challenges to the penalty, the Board affirmed the
penalties, finding that they “were not an abuse of discretion.”

     Petitioner commenced this CPLR article 78 proceeding to challenge
the Board’s determinations. Although petitioner contended in the
petition that he was challenging only the penalty, he also contended
that the determinations should be vacated because they were
“unsupported by substantial evidence.” We thus conclude that Supreme
Court properly addressed the merits of petitioner’s challenge to the
penalty and thereafter properly transferred the matter to this Court.
We now affirm the judgment and confirm the determinations.

     Petitioner contends that the determinations should be vacated
because he appeared at the administrative hearing without the benefit
of counsel. That contention lacks merit. “Aside from certain narrow
exceptions . . . , the right to counsel . . . does not extend to civil
actions or administrative proceedings . . . Due process considerations
in such cases require only that a party to an administrative hearing
be afforded the opportunity to be represented by counsel. Here, the
record indicates that [petitioner] was provided with an adequate
opportunity to obtain legal representation” (Matter of Baywood Elec.
Corp. v New York State Dept. of Labor, 232 AD2d 553, 554).

     Contrary to petitioner’s further contention, the penalty of
revocation is not “so disproportionate to the offense, in the light of
all the circumstances, as to be shocking to one’s sense of fairness”
(Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of
Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233
[internal quotation marks omitted]). To the extent that petitioner
may be deemed to contend that the determinations are not supported by
substantial evidence, that contention cannot be addressed due to
petitioner’s failure to file a transcript of the administrative
hearing (see Matter of Brady v Department of Motor Vehs., 98 NY2d 625,
626; Matter of Cipry Auto., Inc. v New York State Dept. of Motor
Vehs., 72 AD3d 816, 817; see generally Vehicle and Traffic Law §§ 228
[5]; 398-f [3] [b] [3]).




Entered:   December 21, 2012                    Frances E. Cafarell
                                                Clerk of the Court
