Aretakis v. Hults , 51 Misc. 2d 262 ( 1966 )

Sydney F. Foster, J.

Respondent seeks a dismissal of a proceeding under article 78 of the CPLR as a matter of law.

Petitioner was thrice convicted of speeding in violation of the Vehicle and Traffic Law. The offenses occurred March 9, 1962, July 15, 1963 and September 9, 1963. Respondent revoked petitioner’s license to operate a motor vehicle on April 21, 1965, but petitioner asserts that he never received notice of this revocation. This matter is material here only on the issue of whether the instant proceeding was commenced within the four-month period required by statute (CPLR 217), which is one of the grounds specified by respondent for a dismissal of the proceeding. It is assumed for the purposes of this decision that the proceeding was timely instituted.

The Vehicle and Traffic Law (§ 510, subd. 2, par. [d]) requires the mandatory revocation of an operator’s license where there has been a third speeding violation within a period of 18 months. The important issue here is whether petitioner’s offenses were committed within an 18-month period, and in view of the dates mentioned this is dependent upon whether the date of the first offense is excluded from the reckoning. This is the rule specified in the General Construction Law (§§ 20, 30) and sustained by the greater weight of authority (Tismer v. New York Edison Co. 228 N. Y. 156,163-164; Metropolitan Life Ins. Co. v. Schmidt 299 N. Y. 428; Biloz v. Tioga County Patrons’ Fire Belief Assn. 21 N. Y. S. 2d 643, affd. 260 App. Div. 976). There appears to be no cogent reason why the general rule should not be followed, and the administration of the statute will be promoted by a rule of uniformity. An order may be entered dismissing the petition, without costs.