New York Paving, Inc. v. Jackson , 708 N.Y.S.2d 306 ( 2000 )

—Proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Motor Vehicles Appeals Board dated February 4, 1998, which sustained the determination of an Administrative Law. Judge, made after a hearing, finding that the petitioner violated Vehicle and Traffic Law § 385 (9) and imposing a fine.

Adjudged that the petition is granted, with costs, and the determination is annulled.

On June 9,1995, the petitioner was issued a summons charging it with violating the section of the Vehicle and Traffic Law governing “[t]he weight on any two consecutive axles of a single vehicle or combination of vehicles, equipped with pneumatic tires” (Vehicle and Traffic Law § 385 [9]). The petitioner was found guilty after a hearing before an Administrative Law Judge, and that determination was sustained by the New York State Department of Motor Vehicles Appeals Board (hereinafter the Appeals Board) in its determination dated February 4, 1998.

A necessary element of the offense with which the petitioner was charged, i.e., that the offending vehicle is equipped with pneumatic tires at the time of the alleged offense, was not shown by substantial evidence at the hearing. Accordingly, the determination of the Appeals Board must be annulled and the summons dismissed (see, Matter of Blanco v Popolizio, 190 AD2d 554; see generally, Matter of Ridge, Inc. v New York State Liq. Auth., 257 AD2d 625). Thompson, J. P., Krausman, Florio and Schmidt, JJ., concur.