Matter of Khan Auto Service, Inc. v. New York State Department of Motor Vehicles , 999 N.Y.S.2d 237 ( 2014 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: December 11, 2014                   518184
    ________________________________
    In the Matter of KHAN AUTO
    SERVICE, INC., et al.,
    Petitioners,
    v                                     MEMORANDUM AND JUDGMENT
    NEW YORK STATE DEPARTMENT OF
    MOTOR VEHICLES et al.,
    Respondents.
    ________________________________
    Calendar Date:   October 16, 2014
    Before:   Lahtinen, J.P., Garry, Egan Jr., Lynch and Devine, JJ.
    __________
    Vincent P. Nesci, PC, Mount Kisco (Vincent P. Nesci of
    counsel), for petitioners.
    Eric T. Schneiderman, Attorney General, Albany (Jonathan D.
    Hitsous of counsel), for respondents.
    __________
    Garry, J.
    Proceeding pursuant to CPLR article 78 (transferred to this
    Court by order of the Supreme Court, entered in Albany County) to
    review a determination of respondent Department of Motor Vehicles
    which, among other things, revoked the inspection station license
    of petitioner Khan Auto Service, Inc.
    Petitioner Khan Auto Service, Inc., a gas station and auto
    garage, was licensed as a motor vehicle inspection station by
    respondent Department of Motor Vehicles (hereinafter DMV).
    Petitioner Muhammad Z. Khan owned Khan Auto and was certified as
    a motor vehicle inspector. Following an investigative audit, a
    DMV automotive facility inspector prepared a report asserting
    -2-                518184
    that petitioners had performed multiple improper vehicle
    emissions inspections. DMV thereafter charged both Khan and Khan
    Auto separately with 13 counts of fraud and 13 counts of
    conducting improper inspections (see Vehicle and Traffic Law
    § 303 [e] [1], [3]; 15 NYCRR 79.17 [b] [1]). A hearing was
    conducted before an Administrative Law Judge (hereinafter ALJ),
    who merged the counts into four charges against each petitioner,
    sustained them as merged, revoked Khan's certificate and Khan
    Auto's license, and imposed aggregate fines of $1,500 upon each
    petitioner. Petitioners were unsuccessful upon their
    administrative appeal, and thereafter commenced this CPLR article
    78 proceeding seeking to annul the determination. Supreme Court
    transferred the proceeding to this Court (see CPLR 7804 [g]).
    Respondents introduced the investigative audit and the
    inspector's report into evidence at the hearing, and the
    inspector testified that the audit revealed inconsistencies in
    the "communication protocols" for 13 vehicles inspected by
    petitioners between January and July 2011. These protocols are a
    set of codes that, as described by the inspector, provide a
    "language" by which a car's electronic components communicate
    with one another and with the testing modules used during
    emissions inspections. The protocols are recorded by DMV each
    time a vehicle is inspected, vary according to each vehicle's
    make, model and other characteristics, and cannot be changed.
    The inspector testified that the audit revealed 13 occasions on
    which the protocols for vehicles inspected by petitioners were
    different from those recorded for the same vehicles in prior
    inspections. He stated that this could not have occurred unless
    emissions data from an alternate "donor vehicle" had been
    substituted for the data from each vehicle being inspected, and
    the discrepancies proved that petitioners had used this practice
    in all 13 inspections to falsely obtain passing results for
    vehicles that would not otherwise have passed emissions testing.
    Testifying on his own behalf, Khan denied any knowledge of the
    improper inspections and stated that he had never used a donor
    vehicle. He acknowledged, however, that he was the only
    certified inspector employed by Khan Auto and offered no
    -3-                518184
    explanation for the discrepancies.1
    Petitioners' challenges to respondents' proof do not alter
    the result. Although petitioners now assert that the inspector
    lacked the requisite formal training to analyze the meaning of
    the codes, this was not addressed during the hearing, and
    unpreserved issues may not be addressed in CPLR article 78
    proceedings (see Matter of Khan v New York State Dept. of Health,
    96 NY2d 879, 880 [2001]; Matter of Leone v Sprague, 116 AD3d
    1268, 1269 n [2014]; see also Matter of Falbo v Fialo, 108 AD3d
    1228, 1229 [2013]). Moreover, to the extent that related issues
    were preserved, the inspector's responses to questions about the
    meaning of the codes established that such an analysis is
    irrelevant in determining whether donor vehicles were used.
    Petitioners similarly failed to preserve their claim that
    respondents did not establish that the subject vehicles were not
    exempt from inspection based on their weight, nor have they shown
    how such proof, if offered, would have affected the determination
    (see 15 NYCRR 79.2 [d] [4]). Finally, we cannot consider
    petitioners' arguments relative to an internal DMV memo, as the
    memo was not part of "the facts and record adduced before the
    agency" (Matter of Rizzo v New York State Div. of Hous. &
    Community Renewal, 6 NY3d 104, 110 [2005] [internal quotation
    marks and citation omitted]; accord Matter of Lamar Cent.
    Outdoor, LLC v State of New York, 64 AD3d 944, 948-949 [2009];
    see Matter of Sarro v State of N.Y. Dept. of Health Admin. Review
    Bd. for Professional Med. Conduct, 113 AD3d 968, 970 [2014]).
    Accordingly, we are satisfied that respondents' determination is
    supported by substantial evidence (see Matter of Somma v Jackson,
    268 AD2d 763, 763 [2000]; see also Matter of San Miguel Auto
    Repair Corp. v State of N.Y. Dept. of Motor Vehs., 111 AD3d 422,
    423 [2013]; Matter of Cipry Auto., Inc. v New York State Dept. of
    Motor Vehs., 72 AD3d 816, 817 [2010]).
    1
    Khan testified that he sometimes permitted two employees
    who were not certified inspectors to conduct emissions
    inspections using his identification, but declined to attribute
    blame to them, claiming that they had denied any misconduct.
    -4-                518184
    We reject petitioners' contention that they were not given
    a fair hearing. Their claim that Khan Auto did not receive
    notice of all of the charges against it was not preserved, and
    was further contradicted by Khan's express acknowledgment during
    the hearing that he received the hearing notices and charge
    sheets for both petitioners. Petitioners' claim that they were
    not permitted to review DMV's hearing file, while preserved, is
    likewise contradicted by the record. The ALJ permitted Khan to
    review the file for as long as he wished during the hearing and,
    in fact, exceeded the requirements of due process by repeatedly
    offering him additional opportunities to do so and ultimately
    providing photocopies of everything in the file except for a
    confidential report.2 Petitioners' remaining challenges to the
    fairness of the proceeding are unpreserved.
    Finally, we reject petitioners' contention that the
    penalties imposed upon them were excessive. Contrary to their
    claim, it is neither improper nor duplicative to impose separate
    fines on a motor vehicle inspector and an inspection station for
    violations arising from the same conduct (see e.g. Matter of
    Cipry Auto., Inc. v New York State Dept. of Motor Vehs., 72 AD3d
    at 816-817). The violations here involved repeated, intentional
    acts of deception, and the fines and revocations imposed as a
    consequence are not so disproportionate to the offenses as to
    shock this Court's sense of fairness (see Matter of San Miguel
    Auto Repair Corp. v State of N.Y. Dept. of Motor Vehs., 111 AD3d
    at 423; Matter of Tyler v New York State Commr. of Motor Vehs.,
    284 AD2d 645, 647 [2001]; see generally 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 [1974]).
    Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ., concur.
    2
    Petitioners could also have requested an opportunity to
    review the file before the hearing, but did not do so (see 15
    NYCRR 127.6 [a]).
    -5-                  518184
    ADJUDGED that the determination is confirmed, without
    costs, and petition dismissed.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 518184

Citation Numbers: 123 A.D.3d 1258, 999 N.Y.S.2d 237

Filed Date: 12/11/2014

Precedential Status: Precedential

Modified Date: 1/12/2023