Murphy v. Kelly , 1 A.D.2d 922 ( 1956 )

Proceeding under article 78 of the Civil Practice Act to review a determination made by the respondent, after a hearing, revoking the operator’s license of the petitioner pursuant to paragraph (a) of subdivision 3 of section 71 of the Vehicle and Traffic Law for violation of section 58. The proof upon the hearing showed that the petitioner, while driving at forty to forty-five miles per hour, ran his automobile off the highway, to his left, into a ditch. He travelled thirty feet and did not stop until he struck a culvert. He did not apply his brakes at any time. He testified that he had dozed off while driving. The petitioner testified that, after attending a party, he left about 11:30 p.m. to return home and that he began to feel sleepy during the last two miles before the accident. He opened one of the window vents wider but this had no effect. He nevertheless continued to drive until he dozed off. The commissioner found: “ I find that Murphy had sufficient advance warning of his sleepy condition, that he opened his vent wider but realized it had no corrective effects, and that his continued driving thereafter constitutes reckless driving.” There was substantial evidence to support the commissioner’s finding that the defendant was guilty of reckless driving in violation of section 58 of the Vehicle and Traffic Law. This in turn justified a revocation of the petitioner’s license (Matter of Hernigle v. Macduff, 305 N. Y. 367). Determination unanimously confirmed, without costs. Present — Foster, P. J., Bergan, Halpern, Zeller and Gibson, JJ.