                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 10, 2015                    520779
________________________________

In the Matter of CARALYN A.
   MATSEN,
                    Appellant,
      v                                      MEMORANDUM AND ORDER

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


Calendar Date:    October 16, 2015

Before:    McCarthy, J.P., Rose, Lynch and Devine, JJ.

                              __________


      Gerstenzang, O'Hern, Sills & Gerstenzang, Albany (Eric H.
Sills of counsel), for appellant.

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

                              __________


Rose, J.

      Appeal from an order and judgment of the Supreme Court
(Ceresia Jr., J.), entered June 20, 2014 in Albany County, which,
in a combined proceeding pursuant to CPLR article 78 and action
for declaratory judgment, among other things, granted
respondents' motion for summary judgment dismissing the
petition/complaint.

      Petitioner was convicted in 2010 of driving while
intoxicated, her third alcohol-related driving offense within a
10-year period. As a result of her conviction, her driver's
license was revoked for a minimum period of one year (see Vehicle
and Traffic Law § 1193 [2] [b] [3]). When petitioner applied for
                              -2-                520779

a new license in June 2012, respondent Department of Motor
Vehicles (hereinafter DMV) held the application in abeyance until
later that year when emergency regulations were adopted
concerning the review of applications for relicensing by persons
with multiple alcohol- or drug-related driving offenses (see 15
NYCRR part 136). Once the new regulations were in place, DMV
relied upon them to deny petitioner's application because she was
a person with "three or four alcohol- or drug-related driving
convictions or incidents in any combination . . . and . . . one
or more serious driving offenses within the 25[-]year look[-]
back period" (15 NYCRR 136.5 [b] [2]).1 Specifically, during the
look-back period, petitioner committed the "serious driving
offense" of having been twice convicted of speeding violations
"for which five or more points [were] assessed on [her] driving
record" (15 NYCRR 136.5 [a] [2] [iii]).

      After her application was denied, petitioner commenced this
combined CPLR article 78 proceeding and action for declaratory
judgment against DMV and respondent Commissioner of Motor
Vehicles seeking, among other things, an order granting her a new
driver's license and declaring that the emergency regulations are
invalid. Respondents joined issue and moved for summary judgment
dismissing petitioner's petition/complaint, and Supreme Court
granted the motion. Petitioner appeals.

      Although petitioner argues that a number of the provisions
of 15 NYCRR part 136 either impermissibly conflict with
preexisting statutes and case law or are arbitrary and
capricious, she fails to establish that she has suffered an
injury in fact from the operation of any of the provisions she
challenges other than 15 NYCRR 136.5 (a) (2) and (b) (2) (see New
York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211
[2004]; Matter of Gym Door Repairs, Inc. v New York City Dept. of


    1
        A "serious driving offense" is defined as: "(i) a fatal
accident; (ii) a driving-related Penal Law conviction; (iii)
conviction of two or more violations for which five or more
points are assessed on a violator's driving record pursuant to
[15 NYCRR 131.3]; or (iv) 20 or more points from any violations"
(15 NYCRR 136.5 [a] [2]).
                              -3-                520779

Educ., 112 AD3d 1198, 199 [2013]). Thus, with the exception of
her specific arguments seeking the invalidation of 15 NYCRR 136.5
(a) (2) and (b) (2), her challenges are nonjusticiable, inasmuch
as she lacks "an interest sufficient to constitute standing to
maintain th[ose claims]" (American Ins. Assn. v Chu, 64 NY2d 379,
382 [1985], appeal dismissed and cert denied 474 US 803 [1985];
accord Police Benevolent Assn. of N.Y. State Troopers, Inc. v New
York State Div. of State Police, 40 AD3d 1350, 1352 [2007],
appeal dismissed and lv denied 9 NY3d 942 [2007]).2

      Turning to petitioner's justiciable claims, we have
previously held that other, similar provisions of 15 NYCRR 136.5
were promulgated by the Commissioner in accordance with her broad
discretionary authority granted by the Legislature to approve or
deny relicensing applications, that she did not exceed her
delegated rule-making authority in doing so and that the
challenged regulations are otherwise rational, legal and valid
(see Matter of Noonan v New York State Dept. of Motor Vehs., ___
AD3d ___ [decided herewith]; Matter of Joy v New York State Dept.
of Motor Vehs., ___ AD3d ___, ___, 2015 NY Slip Op 08686, *2
[2015]; Matter of Carney v New York State Dept. of Motor Vehs.,
___ AD3d ___, ___, 2015 NY Slip Op 08681, *2-3 [2015]; Matter of
Acevedo v New York State Dept. of Motor Vehs., 132 AD3d 112, 118-
122 [2015]; Matter of Kenny v Fiala, 127 AD3d 1359, 1359-1360
[2015]; Matter of Berroa v Fiala, 122 AD3d 1209, 1210 [2014];
Matter of Scism v Fiala, 122 AD3d 1197, 1198-1199 [2014]). The
legal principles and analyses that undergird our prior decisions
are fully applicable to petitioner's challenge to 15 NYCRR 136.5
(b) (2) and, ultimately, confirm the validity of this regulatory
provision as well. Accordingly, we need not address each of
petitioner's arguments to the contrary.


    2
        To the extent that petitioner's challenge to the
definition of "alcohol- or drug-related driving conviction or
incident" (see 15 NYCRR 136.5 [a] [1]) may also present a
justiciable controversy, petitioner did not raise that argument
on administrative appeal and, thus, failed to preserve it for our
review (see Matter of Tafari v Evans, 102 AD3d 1053, 1054 [2013],
lv denied 21 NY3d 852 [2013]; Matter of Walker v New York State
Div. of Parole, 203 AD2d 757, 758 [1994]).
                              -4-                520779

      We have not, however, addressed petitioner's contention
that 15 NYCRR 136.5 (a) (2) (iii) arbitrarily designates a
"conviction of two or more violations for which five or more
points are assessed on a violator's driving record" to be a
serious driving offense. She argues that this definition is
unfair because the two speeding tickets she received within the
25-year look-back period should not lead to a presumptive
lifetime driving ban. We must disagree.

      In the broadest sense, 15 NYCRR part 136 was promulgated to
"establish[] criteria to identify individual problem drivers,"
that is, applicants for new licenses that "ha[ve] had a series of
convictions, incidents and/or accidents . . . which in the
judgment of the [C]ommissioner . . . upon review of the
applicant's entire driving history, establishes that the person
would be an unusual and immediate risk upon the highways" (15
NYCRR 136.1 [a], [b] [1]). In developing these regulations, the
Commissioner considered empirical data, which indicated that
drivers with three or more alcohol- or drug-related driving
convictions are involved in a disproportionate number of motor
vehicle accidents. Accordingly, the Commissioner rationally
determined that such drivers "pose the highest risk to the
general population" (NY Reg, Mar. 13, 2013 at 43) and, thus,
should not be granted new, unrestricted licenses until after a
waiting period of several years (see 15 NYCRR 136.5 [b] [3],
[4]). With that in mind, we cannot consider the Commissioner's
decision to subject such recidivist impaired or intoxicated
drivers to a longer – or even a presumptively permanent – ban on
relicensure to be arbitrary when, like petitioner, such drivers
may independently qualify as "problem drivers" because of the
presence of speeding or other violations on their driving records
(see 15 NYCRR 136.1 [b] [1]; 136.5 [a] [2]; [b] [2]).

      As for petitioner's claim that her two six-point speeding
violations during the 25-year look-back period are not serious
enough to be expressly defined as a "serious driving offense"
(see 15 NYCRR [a] [2] [iii]), we defer to the Commissioner's
determination, as it was made pursuant to her discretionary
authority (see Vehicle and Traffic Law § 510 [5], [6]), and it
was within the area of expertise of the agency she heads (see
Matter of Consolation Nursing Home v Commissioner of N.Y. State
                              -5-                520779

Dept. of Health, 85 NY2d 326, 331 [1995]; Matter of Riverkeeper,
Inc. v Johnson, 52 AD3d 1072, 1074 [2008], lv denied 11 NY3d 716
[2009]; Matter of New York State Conference of Blue Cross & Blue
Shield Plans v Muhl, 253 AD2d 158, 163 [1999], lv denied 93 NY2d
807 [1999]).3

      In the dissent's view, the scope of offenses that meet the
definition of "serious driving offense" are "far too broad." The
dissent's position, however, appears to be based not upon a legal
conclusion, but upon a value judgment that two five-point traffic
violations and a fatal accident cannot be placed under the same
definitional umbrella. "[A c]ourt's role in reviewing an agency
action is not to determine if the agency action was correct or to
substitute its judgment for that of the agency, but rather to
determine if the action taken by the agency was reasonable"
(Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d
382, 396 [1995]; see Paramount Communications v Gibraltar Cas.
Co., 90 NY2d 507, 513-514 [1997]; Matter of New York State
Conference of Blue Cross & Blue Shield Plans v Muhl, 253 AD2d at
163). As we have said, the Commissioner's inclusion of a
conviction of two or more violations for which five or more
points are assessed on a violator's driving record in the
definition of "serious driving offense" has a rational basis and
is well within her discretionary authority. This rational
determination cannot be rendered irrational by the fact that the
definition also includes other types of offenses with more
serious practical consequences. In other words, if the least
serious offense is properly included, this then confirms the
propriety of including all of the remaining offenses, and the


    3
        We also reject petitioner's additional argument that the
definition of "serious driving offense" is arbitrary because it
does not expressly include convictions for aggravated unlicensed
operation of a motor vehicle in the first degree and leaving the
scene of an accident resulting in serious physical injury, both
of which are felonies (see Vehicle and Traffic Law §§ 511 [3];
600 [2] [c]). While neither is expressly designated as a serious
driving offense, both are covered by the definition thereof, as
they are "driving-related Penal Law conviction[s]" (15 NYCRR
136.5 [a] [2] [ii]).
                                -6-               520779

definition of "serious driving offense" cannot be said to be
overly broad.

      In any event, the criteria detailed in 15 NYCRR 136.5
represent only a "general policy," and the Commissioner has
retained the discretion to deviate from it when any affected
person presents sufficient evidence of "unusual, extenuating and
compelling circumstances" (15 NYCRR 136.5 [d]). Here, however,
it is unnecessary for us to decide whether the Commissioner
properly considered the evidence that petitioner presented to
that effect, as she does not argue that the Commissioner should
have granted her relicensing application pursuant to this
provision.

        McCarthy, J.P., and Devine, J., concur.


Lynch, J. (dissenting).

      I respectfully dissent, essentially for the same reasons
articulated in the dissents in Matter of Acevedo v New York State
Dept. of Motor Vehs. (132 AD3d 112, 122-126 [2015]) and Matter of
Carney v New York State Dept. of Motor Vehs. (___ AD3d ___, ___,
2015 NY Slip Op 08681, *3-4 [2015]).1 Under the challenged
regulation, a lifetime license revocation applies to a person
with three or four alcohol-related driving convictions or
incidents and one or more serious driving offenses within a 25-
year look-back period (see 15 NYCRR 136.5 [a] [1] [2]; [b] [2]).

      The additional focus here is on the "serious driving
offense" component, which is defined as "(i) a fatal accident;
(ii) a driving-related Penal Law conviction; (iii) conviction of
two or more violations for which five or more points are assessed
on a violator's driving record pursuant to [15 NYCRR 131.3]; or
(iv) 20 or more points from any violations" (15 NYCRR 136.5 [a]
[2]). In 2010, petitioner was convicted of driving while
intoxicated, her third alcohol-related driving offense within a


    1
        In Matter of Acevedo and Matter of Carney, the Court did
not address the regulation at issue here, 15 NYCRR 136.5 (b) (2).
                              -7-                520779

10-year period. As a result, her driver's license was revoked
for one year (see Vehicle and Traffic Law § 1193 [2] [b] [3]).
Pertinent to the "serious driving offense" category, she also was
assessed six points for driving 72 miles per hour in a 50 mile-
per-hour zone in April 2004 and received another six-point
infraction in May 2004 for driving 59 miles per hour in a 35
mile-per-hour zone.

      As the majority recognizes, the governing regulation, 15
NYCRR part 136, has a twofold purpose of rehabilitating a
"problem driver" and, when necessary, taking appropriate
disciplinary action to protect that driver "and the public alike"
(15 NYCRR 136.1 [a], [b]). Without question, respondent
Commissioner of Motor Vehicles may reasonably consider a traffic
infraction as a "safety factor" in gauging whether an applicant
is entitled to relicensure (15 NYCRR 136.1 [b] [5]; 136.4 [a]
[3]). The issue here, however, is one of degree. Without the
two speeding tickets, petitioner's three alcohol-related
convictions would be assessed under 15 NYCRR 136.5 (b) (3),
effecting a five-year stay of a relicensure application (see
Matter of Acevedo v New York State Dept. of Motor Vehs., 132 AD3d
at 115). With the speeding tickets, her case was elevated to the
permanent revocation category defined in 15 NYCRR 136.5 (b) (2).
This dramatic consequence illustrates the arbitrariness of the
subject rule. In my view, the various categories that make up a
"serious driving offense" are far too broad. While one can
readily comprehend including a "fatal accident" within the
definition, it is extraordinary and irrational to equate two
five-point violations with a fatal accident for purposes of
imposing a mandatory and permanent license revocation2 (cf.
Matter of Shearer v Fiala, 124 AD3d 1291, 1291 [2015], lv denied
25 NY3d 909 [2015]; Matter of Scism v Fiala, 122 AD3d 1197, 1199
[2014]). As such, I would grant the petition to the extent of
declaring 10 NYCRR 136.5 (b) (2) to be null and void, as beyond


    2
        As petitioner points out, effective June 1, 2013, cell
phone and texting violations, designated as traffic infractions,
are punishable by a fine between $50 and $200 and are assigned a
five-point value (see Vehicle and Traffic Law §§ 1225-c [4];
1225-d [4]; 15 NYCRR 131.3 [b] [4] [ii]).
                              -8-                  520779

the Commissioner's administrative authority and as arbitrary and
capricious, and remit the matter to the Commissioner for further
consideration of petitioner's relicensure application.



      ORDERED that the order and judgment is affirmed, without
costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
