Davidson v. Melton , 55 A.D.2d 799 ( 1976 )

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Saratoga County) to review a determination of the Commissioner of Motor Vehicles suspending petitioner’s driver’s license for a period of 30 days. Following a hearing investigating into the cause of a fatal accident, the referee found that petitioner violated subdivision (a) of section 1120 of the Vehicle and Traffic Law in failing to keep to the right of the highway and directed suspension of his license for 30 days. There is ample evidence in the record in the form of the testimony of the police officer, the admissions of petitioner, and the physical evidence at the scene, to sustain respondent’s determination. While the suspension was not based upon unreasonable speed, the referee found that petitioner was proceeding at a speed imprudent under the conditions then existing upon the highway, causing him to lose control of his vehicle. Respondent’s determination is supported by substantial evidence. In our opinion, however, it was an abuse of discretion, under the circumstances here, to impose a penalty greater than a 10-day suspension. Determination modified by reducing the suspension to 10 days, and, as so modified, confirmed, without costs. Koreman, P. J., Sweeney, Mahoney, Main and Herlihy, JJ., concur.