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

553
TP 16-01783
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, TROUTMAN, AND SCUDDER, JJ.


IN THE MATTER OF MICHAEL D. DEMARCO, PETITIONER,

                    V                              MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES,
RESPONDENT.


NORMAN P. DEEP, CLINTON, FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PATRICK A. WOODS 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 an order of the Supreme Court, Oneida County [Bernadette
T. Clark, J.], entered July 1, 2016) to review a determination of
respondent. The determination, among other things, suspended
petitioner’s license to operate a used vehicle dealership.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner, the operator of a registered used
automobile dealership, commenced this CPLR article 78 proceeding
seeking to annul the determination that he violated Vehicle and
Traffic Law §§ 415 (9) (c) and 417, as well as 15 NYCRR 78.13 (c)
(13). We reject petitioner’s contention that the determination is not
supported by substantial evidence (see generally 300 Gramatan Ave.
Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182).

     At the hearing before the Administrative Law Judge (ALJ),
respondent presented the testimony and report of its investigator
establishing that a certified inspector in the geographical area of
petitioner’s dealership was engaged in a “clean scanning” operation in
which the inspector used an electronic device known as a “simulator”
to generate false inspection certificates for various vehicles that
otherwise could not pass the requisite emissions inspection.
According to the investigator, the inspector admitted that he
performed “clean scans” at night in the rear bays that he rented from
an inspection facility, and that he had made his fraudulent operation
known. The inspector was engaged exclusively in illegitimate
inspections. When interviewed by the investigator, petitioner
admitted that he had experienced problems in getting the monitors of a
particular vehicle to set, and he did not deny that the vehicle was
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                                                         TP 16-01783

unable to legitimately pass an emissions inspection. At the hearing,
petitioner specified that he could not get the monitors to set even
after driving the vehicle for 400 or 500 miles and spending
approximately $300 on parts. Upon speaking with others in the area,
petitioner was informed that the inspector would be able to take care
of the issue at night and get the vehicle to pass inspection. The
vehicle was given to the inspector, who returned it to petitioner a
couple of days later with an inspection certificate in the front seat.
The inspector informed petitioner that he merely resealed the gas cap.
Petitioner sold the vehicle to a customer approximately one month
later, as evidenced by the Retail Certificate of Sale referencing the
inspection certificate that petitioner had obtained from the
inspector.

     Upon consideration of the foregoing evidence and, in particular,
petitioner’s persistent problems with the vehicle and his decision to
actively seek out the inspector’s services upon the advice of others
in the area after the inspector had started “clean scanning” vehicles
at night from the rear of an inspection facility, we conclude that the
ALJ could reasonably and logically infer from the circumstances that
petitioner knew that the inspector would generate a false inspection
certificate for the vehicle (see generally Matter of Klein v Sobol,
167 AD2d 625, 628, lv denied 77 NY2d 809; Matter of Lyon Coram Auto
Body v New York State Dept. of Motor Vehs., 147 AD2d 564, 565).
Although petitioner denied knowledge that the inspector would use a
simulator to “clean scan” the vehicle at the time he sought the
inspector’s services, such testimony presented an issue of
credibility, which the ALJ was in the best position to assess, and
“his ‘role in assessing such credibility will not be disturbed by this
Court’ ” (Matter of Abramson v New York State Dept. of Motor Vehs.,
302 AD2d 885, 886). We thus conclude that the determination that
petitioner violated Vehicle and Traffic Law § 415 (9) (c) by engaging
in fraudulent practice is supported by substantial evidence.

     We further conclude that there is substantial evidence supporting
the ALJ’s determination that petitioner, upon selling the vehicle,
falsely certified that the vehicle was roadworthy in violation of
Vehicle and Traffic Law § 417 and 15 NYCRR 78.13 (c) (13) when, in
fact, the emissions system had not been inspected and was not in good
working order (see Matter of G&S Mgt., Inc. v Fiala, 94 AD3d 1577,
1578).

     Petitioner also contends that he was denied due process because
the ALJ relied on evidence inapplicable to the charges against him.
We reject that contention. Having reviewed the decision in its
entirety, we conclude that the ALJ’s references in the findings of
fact to other vehicles contained in the investigator’s report that did
not belong to petitioner constitute mere clerical errors that do not
warrant reversal, and that the ALJ unequivocally sustained the charges
based upon petitioner’s sale of petitioner’s vehicle (see generally
Matter of Bazin v Novello, 301 AD2d 975, 976).

     Finally, we reject petitioner’s challenge to the suspension of
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                                                         TP 16-01783

his dealer registration for 90 days. “ ‘The public has a right to be
protected against deceitful practices by an auto dealer’ ” and, under
the circumstances here, we conclude that “the penalty is not ‘so
disproportionate to the offense as to be shocking to one’s sense of
fairness’ ” (Matter of T’s Auto Care, Inc. v New York State Dept. of
Motor Vehs. Appeals Bd., 15 AD3d 881, 881; see Abramson, 302 AD2d at
886; Matter of Precise Auto Elec. v Commissioner of Motor Vehs., 151
AD2d 680, 681).




Entered:   May 5, 2017                          Frances E. Cafarell
                                                Clerk of the Court
