Dery v. Kelly , 2 A.D.2d 635 ( 1956 )

Proceeding under article 78 of the Civil Practice Act to review a determination made by respondent, after a hearing, revoking petitioner’s license to operate a motor vehicle on the ground that petitioner had violated section 58 of the Vehicle and Traffic Law which pertains to reckless driving. On the night of the accident, petitioner had spent seven hours in a bar. While there he drank three bottles of beer and ate two sandwiches. Feeling sleepy, he left the bar at approximately 1:30 A.M., to drive to his home. He fell alseep after driving about 20 miles and his auto left the highway striking 11 guardrails, two of which were knocked to the ground. The hearing referee found that petitioner started to drive when he was feeling sleepy, drove without taking any steps to correct his condition until he finally fell asleep at the wheel and concluded that such conduct constituted driving in a reckless manner. There is substantial evidence in the record to support the finding that petitioner had advance warning of the sleepy condition which caused the accident. That is a sufficient basis for respondent’s revocation of the license for reckless driving. (Matter of Hernigle v. Macduff, 305 N. Y. 367; Matter of Murphy v. Kelly, 1 A D 2d 922.) Determination unanimously confirmed, without costs. Present — Foster, P. J., Bergan, Coon, Halpern and Zeller, JJ.