                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 15, 2016                   522397
________________________________

In the Matter of MARIANNE
   MERKEL,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF
   MOTOR VEHICLES et al.,
                    Respondents.
________________________________


Calendar Date:   October 21, 2016

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

                             __________


     Paula Schwartz Frome, Garden City, for appellant.

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

                             __________


Lynch, J.

      Appeal from a judgment of the Supreme Court (Zwack, J.),
entered May 27, 2015 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondents denying
petitioner's application for a driver's license.

      In 2012, petitioner's driver's license was revoked after
she was convicted of her fifth alcohol-related driving offense.
In 2014, petitioner's application for a new license was denied by
the Driver Improvement Bureau (hereinafter Bureau) of respondent
Department of Motor Vehicles pursuant to 15 NYCRR 136.5 (b) (1).
The Bureau also denied petitioner's request for a hardship
exception under 15 NYCRR 136.5 (d), and that determination was
                              -2-                522397

affirmed by respondent Department of Motor Vehicles Appeals Board
(hereinafter the Board). Thereafter, petitioner commenced this
CPLR article 78 proceeding challenging the Board's determination
as arbitrary and capricious for failing to duly take into account
her history and extenuating circumstances. Supreme Court
dismissed the petition and this appeal ensued.

      Initially, petitioner did not preserve a challenge to the
regulation at issue, 15 NYCRR 136.5 (see Matter of Nicholson v
Appeals Bd. of Admin. Adjudication Bur., 135 AD3d 1224, 1225
[2016]). Under this regulation, a lifetime license revocation
applies to a person with five or more alcohol-related driving
convictions or incidents during his or her lifetime (see 15 NYCRR
136.5 [a] [1]; [b] [1]). Pertinent here, the Commissioner of
Motor Vehicles retains the discretion to grant a new license to
any person affected by the regulation who demonstrates "unusual,
extenuating and compelling circumstances . . . [that] may form a
valid basis to deviate from the general policy" (15 NYCRR 136.5
[d]; see Matter of Nicholson v Appeals Bd. of Admin. Adjudication
Bur., 135 AD3d at 1225). In her hardship affidavit, petitioner
acknowledged that she was convicted of alcohol-related offenses
in 1986, 1989 and 1992, and two in 2012. She explained that
after the 1992 conviction, she participated in alcohol
rehabilitation, married in 1998 and had a child, obtained a
certificate of relief from disabilities in 2000 and was licensed
as a registered nurse in 2001, working in that capacity until
2012. Petitioner maintained a 20-year period of sobriety, but,
due to a series of significant stressful events in her personal
life in which she separated from her husband and was the victim
of two violent crimes, she relapsed and was arrested for driving
while intoxicated in May 2012 and again in June 2012. At this
point, she increased alcohol and psychological treatment,
completing a Bridge Back to Life program in 2013, while
continuing counseling at the Central Nassau Guidance Center. She
was granted another certificate of relief from disabilities in
2013. Pursuant to a consent order in October 2013, petitioner
was authorized to continue to practice as a registered nurse by
the Department of Education, subject to quarterly monitoring.
She seeks a driver's license for purposes of securing employment
and to attend to the needs of her family, documenting the history
recited above (cf. Matter of Nicholson v Appeals Bd. of Admin.
                              -3-                  522397

Adjudication Bur., 135 AD3d at 1225).

      The difficulty in reviewing this petition is that the
record does not include the Bureau's March 25, 2014 letter
determination. All we have in this record is the Board's
explanation that the Bureau "determined that the denial of
[petitioner's] application for a driver's license could not be
withdrawn" (emphasis added) – a conclusion the Board determined
"had a rational basis." The flaw here is that the underscored
phrase runs counter to the discretionary standard set forth in 15
NYCRR 136.5 (d). On this record, it would appear that the Bureau
misconstrued its authority under the regulation and failed to
exercise any discretion in reviewing the application. This error
is not cured by the Board's characterization of the Bureau's
decision as "rational." As such, the petition is granted to the
extent of annulling respondents' determination and remitting the
matter to respondents for further review of petitioner's
application.

     McCarthy, J.P., Egan Jr., Clark and Aarons, JJ., concur.



      ORDERED that the judgment is reversed, on the law, without
costs, determination annulled and matter remitted to respondents
for further proceedings not inconsistent with this Court's
determination.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
